planes, books and creative commons

I flew to Brisbane and back last week on Air NZ. Watched a film and some TV eps on the back of seat screen, which I took for granted. Coming back I figure I’ll do the same, had already mentally selected a couple of choices for the film, based on my previous scan of the selection available. Sit down in aircraft seat at Brisbane International to see a sticker advertising seat back entertainment coming soon, along with a photo showing me how it would look. One I was expecting the back of seat screen based on my experiences, flying with other carriers generally and specifically having had it available on the reverse flight but three days ago. So I was kinda gutted to find that this wasn’t the case. But having a facsimile screen sticker taunt my expectations really slapped the salt into the customer experience graze. I see the same stickers are now placed on the back of Auckland bus seats, where they are unreadable unless you bend down to read them. Winning strategy all round Mr and Ms Marketing bods.

So instead of a film on the way back I chewed all too fast through the sixth installment of Australian Labor politician/sleuth Murray Whelan, Sucked In. Whilst those around me were sucking in wind through their teeth as the lightening crackled around us on our descent into Auckland I was attempting to stifle my cackling laughter. Still no sign that John Clarke et al will dramatise anymore of these books beyond the first two novels Stiff and The Brush Off. Something should be done.

The purpose of flying to Brisbane was to attend the Building an Australasian Commons conference held by Creative Commons Australia. The Aussies are well onto it, well funded, well organised and producing projects that are being used throughout the global CC community. Though to be fair they based their version 3.0 set of licences on the NZ licences that were launched last year. I caught up with Louise O’Brien from CC Aotearoa New Zealand who indicated that they are still planning to hold regional CC events, including Auckland, and that they hope to launch a more complete web site in the future.
There needs to be greater publicity of CC in NZ and I hope these efforts raise awareness. I have come across a number of people using CC licences in NZ that were unaware that there were specific NZ licences available.

stats & startups

I’ve written at least three blog posts on that Act that passed the third reading last week, and I’ve binned them all. I’ve decided that’s too easy to be snarky…

I will however quickly note that in the UK the music biz is fighting a rear guard action on format shifting. They are seeking to impose a iPod tax as compensation.

Instead a quick post on something more positive.

I spent a couple of hours at the Small Business Expo today where my pick of the show would have to be Statistics NZ. There is a huge resource of free market research stats waiting for businesses to tap into. Some is free, some is charged for. The whole focus on business enablement and the savviness I encountered on their stand was impressive. The free stats are in large part due to additional funding they’re received. Good work govt. Let’s have more funding for this department to enable them to free up more of their stats.

IP telephony company Vadacom were also to be seen at the show. They use Python in their products and host the Auckland meetings of the NZ Python Users Group at their K Road base.

“new zealand is a very boring place”

Aucklander Peter Calveley describes his motivation for having a go at Amazon’s one-click patent as basically being bored. Amazon didn’t deliver on a book order, which seems to have got his goat up - and provided him with a line of work to keep him busy. The work of proving that there was substantial prior art concerning one-click transactions on the web. Thanks to Calveley Amazon have proposed changes to the patent which will reduce its scope to one-click transactions involving a shopping cart, after the US Patent Office & Trademark Office had rejected the majority of Amazon’s claims (21 of 26).

Calveley used the technique of having the patent re-examined to be able to use prior art. Ironically he used information provided by Amazon’s Alexa via the Archive.org’s Wayback Machine as the source of information providing him with evidence that one-click transactions were in use on the web prior to Amazon and its patent.

Sydney Morning Herald and a couple of stories from Outlaw provide the background. For Peter’s take check his blog.

barcamp/creative commons

I have recently become an expert on starting and not completing posts. So I’ll bang out this mix of memes double quick.

Auckland Does Community
Firstly there is a BarCamp happening in Auckland, well Botany Downs, on December 15. Get involved.
Some of those attending can be seen at the Auckland Web Meetup - which is a fantastic forum, much kudos to John and Karl for orchestrating such positive, productive, fun evenings. Next one is Feb.

Creative Commons
I got myself down to the launch of Kiwi Creative Commons licence(s) a few weeks ago. It was interesting, the speaker talks are available online for viewing. The workshop I attended was great - meet a bunch of people doing intriguing things and we had some robust discussion around how CC would affect our collecting institutions. In some small gesture I have licensed the contents of syntho.org as NY-NC (NZ). This means you can do anything you like with the content, unless you’re going to turn a profit off it, and if you do use it - then give me credit for what you do use. As I say it’s a gesture. There hasn’t been much real CC NZ action. I believe Otago Poly are CC licensing some of their course materials. Are there other examples to cite?

The licences are are available on the main CC site at http://creativecommons.org/license/. Select NZ from the ‘Jurisdiction’ menu. I’m not sure why the Creative Commons NZ site appears to contradict the availability of the NZ licences (as of Nov 20 2007).

BTW: CC is on a fund raising drive, why not donate a monthly utility bill worth towards CC?

TV Listings Copyright :: ICE TV Decision

A week ago the Federal Court of Australia found against Nine Networks in a copyright case it brought against ICE TV. Nine asserted that ICE TV had infringed the copyright of their TV Schedule in the production and communication of their ICE Guide.

The case is important as it has determined, within the Australian jurisdiction, that copyright for a compilation - such as a weekly TV schedule must be considered as a whole and that there is no separate copyright for components, such as the time and title information within that schedule.

“Nine cannot claim copyright in the time and title information for a single day or week as if that information were itself a separate compilation.” - Bennett J

It also provides an interesting window into the world of Australian TV scheduling and listings production. For the details you’ll have to read the full decision.

BTW: Talking of TV schedules I see that Fiona Rae is providing a ‘wheat from chaft’ look ahead for the week on NZ screens. Who would have known that C4 was screening Skins otherwise?

Here’s my 5 minute summary of the case

Facts

ICE TV provides an digital EPG service for consumers in Australia.
ICE have created their own system, comprising of a database and prediction process.
The basis of their system is data that was collected by watching television and compiled into the initial channel templates.
Part of ICE TV’s process is checking their predictions of the TV schedules against the guides published by third parties.
These aggregated listings are created by a small number of companies, including Pagemasters.
(BTW: Pagemasters is used by NZ publishers both for TV listings and more recently for subcontracted sub-editing).
The aggregators are provided with the weekly schedules by the TV Networks, including Nine.

Bennett J identified the following issues for determination.

What is the identity of the Nine work(s) in which copyright subsists?

“Nine can claim copyright in the Weekly Schedule. It cannot claim copyright in the components of the Weekly Schedule as if they are separate compilations. They are not.”

What is the effect of aggregation on the copyright subsisting in the Nine work(s)?

“The process of aggregation does not “destroy” Nine’s copyright in the Weekly Schedule. The Weekly Schedule remains a copyright work but it is separate and distinct from the Aggregated Guides, which are themselves original literary works and copyright protected compilations.”

Did Ice copy the Nine work(s) when it created the first templates for the IceGuide?

“It is at law open to a person to ascertain the facts recorded in a compilation by independent inquiry and to compile his or her own compilation containing the results of that inquiry. So long as the second compiler does not copy the first compilation, there would be no infringement of any copyright in that compilation ‘any more than the existence of copyright in a photograph of a scene signifies that there is copyright in the scene itself, which, therefore, a later photographer is not at liberty to photograph from the same viewpoint’”

Do Ice’s present activities infringe Nine’s copyright?

“Different content and modes of expression and arrangement may be utilised for a television schedule. The Weekly Schedule, the Aggregated Guides and the IceGuide each differ in their manner of selection, expression and arrangement. It follows that form and content are each relevant to the question of infringement.

Ice does not engage in broadcasting. It does not take the skill and labour of placing programs in an order that appeals to viewers in that Ice plays no part in the placement of programs. It does not take the format of the Weekly Schedule. It does not take synopses from the Weekly Schedule. It conducts its own research and drafts its own synopses.

Ice does take slivers of time and title information each day from the Aggregated Guides. For the reasons I have set out in detail, Ice does not reproduce a substantial part of the Weekly Schedule in so doing.

It follows that Ice has not infringed Nine’s copyright in the course of making and updating the IceGuide.”

For other takes:
William Patry provides comment.
ICE TV’s reaction
Sydney Morning Herald Report

nab roundup & disney explains copyright

Couple of quick media link outs on a Monday morning…

media tech geekery
Alex Lindsay from TWIT/Pixel Corps provides a great walk through of NAB. About twenty minutes long.
The rest of Gear Media Tech is worth subscribing to if you find this interesting.

disney characters explain copyright
Personally I find the edits a little clunky but as a concept it’s 10 out of 10. Professor Eric Faden of Bucknell University has created an overview of (US) copyright using excerpts from Disney animations.
Stream version
YouTube version

Michael Geist analyses IIPA Report

Michael Geist analyses the IPA submission to the US government in a BBC column.

"Second, in a classic case of “do what I say, not what I do”, many countries are criticised for copyright laws that bear a striking similarity to US law. For example, Israel is criticised for considering a fair use provision that mirrors the US approach.

The IIPA is unhappy with the attempt to follow the US model, warning that the Israeli public might view it as a “free ticket to copy.” Similarly, the time shifting provisions in New Zealand’s current copyright reform bill (which would permit video recording of television shows) are criticised despite the fact that US law has granted even more liberal copying rights for decades." - Geist

William Patry, Senior Copyright Counsel at Google, adds to the commentary on the IIPA Report. Focusing on the opposition to a proposed Israeli provision on fair use which is based upon similar US provisions.

"The unusual aspect of all this of course, is a U.S. trade organization lobbying the Office of United States Trade Representative to lobby a foreign government not to adopt a critical part of U.S. copyright law." - Patry

copyright amendment workshop

I attended the Auckland InternetNZ session on the Copyright Amendment Bill last Wednesday. This was part of InternetNZ’s process of consultation to help frame their submission to the Commerce Select Committee. The presentations and discussions also helped many in translating the language of statute to discover the essence of the bill. The submission period has now been extended, so you have until March 9 to provide your input into the proposed changes.
The materials from the presentations are available online.

Here are a few issues that emerged:

Format shifting
The provisions provide weak rights to the consumer. As previous noted:

• There is a two year sunset clause which will see this right removed unless the clause is renewed by an Order in Council.
• Companies can remove this right through contracting out.
• It is limited to audio material.

One issue I hadn’t seen raised before is the “private and domestic” use clause limiting the format shifted music to your home. Clive Elliott raised the question of whether it would be legal to listen to your format shifted iPod music at work.

As noted by more than one learned lawyer at the workshop - the format & time shifting clauses will be irrelevant to most NZers. After all we have been happily time shifting since Sony introduced the consumer video tape recorder in 1975, have been copying CDs onto iPods/MP3 players since the Diamond Rio appeared and will continue to copy DVDs onto portable video players such as the video iPod. Despite the fact that this will remain illegal if the bill is passed in its present form.

Law? The Big Picture
This is an area where the law as statute and the law as in what is socially acceptable are poles part. The format shifting and time shifting provisions do help close up the gap. The question of what is fair in the balance between copyright holder and society was raised by questions from the floor. These sought to question or reframe the basis of copyright. As Bronwyn Turley from the Ministry of Economic Development noted the process, leading to this bill, has solely been targeting a digital update of current legislation, and not a complete review of copyright.
More importantly NZ’s ability to redesign copyright within our jurisdiction is framed by our international relationships including the treaties on IP and Trade we are signatories of.

TPM test case
If the bill passes, without change to the TPM sections, we will have an interesting test case with the introduction of the new high definition video discs into NZ. More specifically the test will involve the lawful playback and viewing of region controlled video. Although the back catalog HD DVD discs now available appear to be region free, it is clear that some form of Region Playback Control (RPC) is likely to be introduced. This would bring HD DVD in line with Blu Ray which already has defined its RPC. Therefore it appears certain that we will be able to legally import a HD DVD or Blu Ray disc which will not play in a NZ zone player. It is equally clear that the MPA et al are aware of this thorny issue and are lobbying against it through submissions to the US government.

TPMs & Creative Innovation
During Peter Gutmann’s presentation on TPMs he cited an example of a creative individual being stymied by TPMs that prevented them from viewing their own content on a PC. The TPM in question was Macrovision, an analog video TPM. This issue emerged last year when there were fresh attempts to impose measures against the so called analog hole. TPMs pose a real danger to creators. In protecting ‘proper’ content all other content is assumed to be illegal. This will remove or reduce the functionality available to creators who are limited to consumer level equipment. Given that copyright is supposed to exist to promote the creation of works, if TPMs place a barrier to creation you have to wonder if they have a place in copyright legislation.

Creative Commons & Govt
There was some brief talk during the panel on the history of attempts to get a NZ set CC licences available. Afterwards during drinks there was a suggestion raised that when a NZ CC non-commercial licence exists it would be a great way to allow government departments, SOEs and CROCs to provide non-commercial use of our information and content assets - whilst still allowing commercial exploitation. By allowing citizens to experiment with our national assets commercial applications could be discovered. In a similar way that the BBC’s Backstage non-commercial feeds have helped spawn commercial licence paying applications. BTW for a great discussion on the realities of DRM and complex rights situation within archives spend a hour listening to backstage’s first podcast.

baacamp

“All had fun, and came away physically exhausted but mentally recharged” - Nat Torkington

baacamp was a great experience. Here’s a selection of my memories from the weekend:

Networks
Friday evening saw Minister David Cunliffe give his pitch on the government’s approach to ensuring NZ has the necessary infrastructure in place to compete online. He seemed genuinely surprised by the consequences of de-peering which was communicated to him by the room. As noted by others in the room he took that issue away as a priority.

Energy
David Haywood gave a talk on energy. Starting by explaining the difference between store and flow based energy. Then looking at each of the flow based sources and discussing their merits. Including work he’s been involved with around wave generation and sterling engines. Peering also raised its head here, in relation to the difference between what an electricity network will sell and buy electricity. This is an issue when you have home based wind or solar generators with excess electricity that can offering to others back on the grid.

Copyright
Judith Tizard fronted to give her position on the whys and wherefores of the Copyright Amendment Bill. Followed by some analysis by lawyer and policy foosters.
Judith started out by recounting a meeting with a music executive who had urged her to continue making formating shifting - of music - just a ‘little bit illegal’. She also explained that a goal of the bill was to put in place copyright law that would continue to relevant in the face of future technological developments. I wish the bill truly reflected a policy and rights based approach. However the exclusion of format shifting of video from the bill demonstrates the political reality that the movie industry continues to trump consumer rights.
It would be a shame if the bill was to be passed in this state. Video format shifting of material is happening now across NZ in exactly the same way the music is being format shifted. This bill would then create law which continue to make things a ‘little bit illegal’ for those: copying their DVDs to the media centres or transcoding and copying their DVDs onto their video iPod.
There was very limited discussion on TPMs (aka DRM), some this was around the desire to access DRMed content sans DRM. In the music world there are signs that DRM is dying. The latest being Steve Jobs’ open letter reaction to Norway’s stance. Of course there will be plenty more opportunity to discuss the bill next week at the InternetNZ workshops. I intend to get to the Auckland session.

Xero
As someone with a couple of recently created small trading entities the Xero preview was of direct interest to me. It’s accounting Web 2.0. style for small to medium sized enterprises (SMEs). Naturally that means great data integration/interchange and a well thought out user experience.
Rod Drury, the man behind Xero, talked about the capital bootstrapping process that has got them to where they are. The trade sale of email archiver AfterMail was part of the process. In the world post Sarbanes-Oxley archiving email is required for many companies. Accounting is another activity that is required. Do I spot a MO? Find an activity companies are compelled to do - then provide a solution which makes the activity as painless and as valuable as possible?
Its certainly not a bad starting angle for startups.

“Fucking big web sites”
Artur Bergman from Six Apart gave a wonderfully deadpan presentation on how to handle seriously loaded dynamically generated web sites. In-between dissing filesystems, databases and codecs he explained the pragmatic approach that LiveJournal has taken. Their Perl based tools (Perbal, memcached, GearMan and MogileFS) created for this end are open source and were in use by a number those in attendance. This presentation from OSCON 2005 provides insight into their architecture.

Auckland City
The talk by Richard Simpson on how to punctuate Auckland was remarkable for two reasons. Firstly there were almost as many non-Aucklanders in the audience as those living in Jaffaville. But more importantly the discovery that there is someone in council who has big, ballsy and in many respects, beautiful ideas on how we can transform Auckland into the city it deserves to be. Including a new bridge - for all transport, a national stadium that would help link the CBD with the Domain and a canal between the two harbours. Shame there are no plans for an aqueduct on the canal though;)

Thanks!!!
Big Thanks for organising/supporting the whole experience to Nat, Russell, Jenine, Vern and the sponsors including Google, Xero and Karajoz.

copyright (new technologies and performers' rights) amendment bill

Well missed the introduction of the amendment to the Copyright Bill on Monday.

Boing Boing has a slightly rubber hammer reaction to it, and Ben from gadgetophile.com has already whipped into action and sent my MP and the Minister responsible a letter on the issue.

Best to go to the source, the Bill is available online:

PDF here.

Plain text version here.

From a very brief scan of the bill here are some comments.

Private copying exception

s 81A(1) is the legalise iPod section. Basically if you are the genuine owner of a CD you’re allowed to make one copy of the CD to any device. So rip it in iTunes on your Mac/PC (one copy) then sync it with your iPod (one copy). This ability to copy is limited to music recordings and audio books. So ripping your DVDs to your computer or onto an iPod remains a breach of copyright.

Problems.

1. This section has a sunset clause, s 81A(3), which will see it expire after two years from the date that the Act comes into force. It can be extended multiple times by an Order in Council, so that means it’s easy enough to extend it should there be a political will to do so.

2. s 81A(2) allows the seller of music recordings and audiobooks to contract out of this provision by specifying how it may or may not be copied.

3. Why didn’t they extend this private copying exception to audio visual works? What is the fundamental difference? People are currently actively doing both forms (CDs and DVDs) of format shifting.

Technological Protection Measures (TPM)

Okay I’m not going to discuss the broader ugly issues with TPM. The EFF (consider a donation to the EFF it’s Christmas!) and Professor Ed Felten of Freedom to Tinker have plenty of background reading.

But there are some balances in the Bill to the obvious issues with TPM. s 226D outlines when TPM does not apply and s 226E provides a method for users to circumvent TPM when the TPM prevents them from ‘exercising a permitted act’.

Basically libraries, archives and educational institutes are allowed to circumvent TPM to undertake encryption research, effect interoperability of software, correct an error in software or allow a permitted act – like listen to your DRM music.

So in theory these provisions would enable a user to rescue music or video wrapped in a DRM system that was no longer supported. But they can only engage a library, archive or educational institute to bypass the DRM, see s 226E(b). How realistic is this? Will they supply DRM translation services, allowing Freeplay DRM to be unwrapped then rewrapped into Windows Plays for Sure DRM? Could be quite a profitable and active area of operations for these prescribed libraries, archives and educational establishments.

Disassembly of Computer Programs

s 80A allows a legal user of a computer program to decompile the program from a low level language to a high level language. This is granted for two purposes. Firstly where this is required to create another computer program which will interoperate with the first program. Secondly when there are errors in the program. The exception is only granted if the supplier does not play ball by either provide a means of integration in the first case, or where there is an issue with a program and the supplier does not supply ‘a properly functioning and error-free copy of the program…in a reasonable time at an ordinary commercial price.”

This cannot be contracted out of by suppliers of computer programs, see s 80C. Compare this with the private copying provisions which can be contracted out of.

So that’s my 1 hour brain dump. /p>
Filed under: nz  drm  copyright/ip 

catch up :: media, copyright, control, fair use

Proviso: This catch up post has lots of legal related comment and although I believe the comments are considered, these are not being made by a legal professional (IANAL).

Content at all costs

The latest Sony Audio CD DRM ugliness is yet another reminder of the distorted views that some content owners have regarding their rights versus their consumers’ rights. These are not limited to large content cartels either as I have observed extremely niche players in NZ ignoring the basic economic principles on which copyright is based on.

The fundamental problem is that some content owners seem to believe that they are morally entitled to complete-absolute-total control over every aspect of their content indefinitely.

Therefore they should have the right to crack your computer with copy protection schemes such as XCP. They should also have access to your all email and records of where and what you do on the Internet, as access would be an “effective instrument in the fight against piracy”. Thankfully the EU has turned down that particular request, for now. [The bad news from a privacy standpoint is that data retention of communications has been mandated by the EU]

I see that BoingBoing has posted the list of rules associated with a DRMed Cold Play CD. You can’t see the list until you have purchased it, as it’s an insert – which to me is thinking totally inline with the music industries logic concerning the threats and opportunities they face. DRM CDs do not prevent piracy, they simply break the product for Mr and Ms Av Punter.

Perversely the CD DRM may increase the duplication of material, from DRM CD to CD, to enable the normal use of the CD. Strangely enough I recently explained to an acquaintance how he could create a DRM free copy of a Cold Play album he had purchased which he could not play as normal on his Windows PC. At the end of this process he possessed two copies of the album – and he was still extremely annoyed that he had unknowingly purchased what he considered to be faulty product. For a comprehensive analysis of CD DRM Ed Felten’sFreedom to Tinker is a great resource.

Meanwhile in the US there is effort afoot to close the ‘analog hole’ with the Digital Transition Content Security Act of 2005 a.ka. the Sensenbrenner bill. This would require all analog to digital video processing products, hardware or software, to enforce the technological copy protection schemes mandated by the Act. A mix of the existing Copy Generation Management System Analogue (CGMS-A) a.k.a. Broadcast flag and the stronger Video Encoded Invisible Light (VAIL) method are currently being proposed.

Technically CGMS-A is encoded within the vertical blanking interval (VBI), separate from the video proper. This is same place where teletext and captioning data are found. Therefore it is easily defeated either as a consequence of the normal video processing that occurs within a broadcasting environment or intentionally stripped out. VAIL uses stenography to store information within the luminance of the signal and therefore is effectively mixed into the video. As it’s name suggests the Video Encoded Invisible Light is not detectable by human eye, and is considerably more difficult to defeat than CGMS-A.

You’re going to hear this described as the Bat signal due to the technology first being deployed to trigger Batman toys through them watching Batman television shows.

From a manufacturers point of view the bill is interesting. VAIL is a patented technology and the Sensenbrenner bill will force them to use the tech, presumably forcing them to license the technology from VAIL Interactive, or will they provide VAIL to manufacturers free of charge? The second option seems unlikely and although it’s possible some sort of umbrella deal with VAIL Interactive could be entered into – there would still be a cost of use for VAIL and it will be the manufacturers and consumers who will pay for it.

As The Technology Liberation Front point out professional devices are excluded from the Sensenbrenner bill but who gets to decide what is ‘professional’?

“Professional” devices, you see, are exempt from the restrictions that apply to all other audiovisual products. This raises some obvious questions: is it the responsibility of a “professional device” maker to ensure that too many “non-professionals” don’t purchase their product? If a company lowers its price too much, thereby allowing too many of the riffraff to buy it, does the company become guilty of distributing a piracy device? Perhaps the government needs to start issueing “video professional” licenses so we know who’s allowed to be part of this elite class?

Here in NZ the independent production community, which produces a significant amount of the material seen on prime time free to air television, depends on relatively low cost video acquisition and editing tools therefore if VAIL is mandated within the US will NZ professional users be adversely affected through increased equipment prices and/or by VEIL interfering in their production processes?

Internet Control

Meanwhile the ongoing debate within WIPO regarding the creation of a new intellectual property right for webcasters continues and we have US telecommunications companies openly suggesting that they be allowed to control the network performance of video content depending on business relationships with the site’s owners. This would allow a telecom to effectively degrade the performance of competitors for those using it’s networks or to offer a higher performance to web sites that had paid a premium to the telecom.

The incredible potential of broadband will be severely compromised if network operators are permitted to be the gatekeepers of the Internet, deciding what content, applications and services succeed or fail on the Internet. Indeed, users must be free to use broadband connections as they so choose; to read, search, buy, assemble and innovate. That is the very essence of the Internet. – Letter from Amazon.com, eBay, Google & IAC/Interactive Corp. to the US Committee on Energy and Commerce 8/11/2005

Unsurprisingly both major content sites, such as Google and Amazon, and consumer groups are strongly opposing this lobbying in regard to the network neutrality scope of US 2005 Telecom Bill.

Balancing IP

The Royal Society for the Encouragement of Arts, Manufactures & Commerce (RSA) have recently produced the Adelphi Charter on creativity, innovation and intellectual property that describes a more balanced approach to IP.

Creativity and investment should be recognised and rewarded. The purpose of intellectual property law (such as copyright and patents) should be, now as it was in the past, to ensure both the sharing of knowledge and the rewarding of innovation.

The ability to use and copy copyright material legally without permission is known as fair use or as fair trading in NZ and Commonwealth countries. It helps provides balance to copyright law however as Donna Wentworth notes:

...copyright mythology sounds a lot more like the truth than the truth. For instance, many people believe that copyright law gives the copyright holder absolute, immutable control over a work, lasting into perpetuity. The truth—that copyright has built-in limits to protect free speech, scholarship, research, and innovation (the “progress of science and useful arts”)—sounds like a lie. Surely all of that stuff is just bleeding-heart liberal, mushy-minded nonsense?

Therefore it’s useful to read two recent papers on fair use. One from the Brennan Center for Justice at the NYU School of Law, which describes the risk of fair use’s survival. Amongst other issues it notes the how the clearance culture of film and broadcasting affects the ability to use material in a fair use manner. For a different take on clearance culture and licensing hurdles this piece by the Hollywood Reporter explains why we’ll probably never see WKRP in Cincinnati on DVD. Larry Lessig cites this an example of how the anticommons prevents innovation and economic benefit.

The other recent guide is from the Center for Social Media outlining fair use principals to using material in their work in the report Documentary Filmmakers’ Statement of Best Practices in Fair Use.

The recently introduced Digital Media Consumers’ Rights Act of 2005 (US Congress) seeks to further clarify consumer’s fair use rights when DRM is concerned, stating that “is not a violation … to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work”.

Here in NZ we still await amendments to the Copyright Bill that are expected to propose the ability for individuals to format shift content, e.g. ripping your CD collection onto your iPod. It will be interesting to see if similar rights of circumvention to enable time or format shifting being proposed in the US will be adopted by NZ. Without these copying DRMed CDs, such as the Cold Play album, will remain outside statutory law.