[Fsfe-ie] Copyright consultation

Bob Jolliffe bobjolliffe at gmail.com
Wed Jul 13 00:30:50 CEST 2011

Hi Ben

Sorry for joining this conversation a bit late.  I haven't seen the
Minister's invitation for submissions (is there a reference?) so make
a few comments in ignorance.

For me one of the critical issues facing the Irish public currently in
relation to copyright is the cost of access to school textbooks and
what seems to be the generally corrupt relationship between the
educational publishing industry and the state.  It seems we have been
through a decade or so where the state has funded the production of
learning materials which produce handsome profits for publishers at
considerable expense to learners (and their parents).  Perhaps this is
a more general question around who gets to enjoy the fruits of public
expenditure, similar to the patent issue and publicly funded research,
but I wonder is there anything in the act, or its proposed revision,
which deals with state copyright and/or the public domain?  In most
cases copyright revisions globally tend to act as a sort of a one way
ratchet in the way they have systematically contracted public domain
rights in favour of private rights, disregarding whatever delicate
balance might exist.  Strengthening fair use rights (if that is the
intention) would be a good thing.  But it would be good to see this in
a broader context of positive recognition of the public domain -
recognizing the vital importance that the public domain plays in the
cultural and economic life and potential of society.  Mostly of
course, I'd like to see measures in the law whereby state funded
educational material, like school textbooks, at least can be produced
under a positive copyright regime where learners and teachers have
free access to them.  Perhaps such measures already exist, if so
excuse my ignorance ..

The current fascination with electronic textbooks worries me quite a
bit in this regard.  It would be good to have assurance that school
kids being prescribed electronic books are not in some way losing any
fair use rights (under DMCA like provisions) that they might
previously have enjoyed.   (I'd probably need to read what is being
proposed to perhaps understand this better).

Two minor comments inline ...

On 11 July 2011 22:34, Ben North <ben at redfrontdoor.org> wrote:
> Hi,
> Thanks to Malcolm and Glenn for feedback.  A couple of days
> left, so any thoughts on the below?  It does bang on about the
> DMCA in the USA quite a bit, but it does give good illustrations
> of the sorts of Bad Things that might happen here.
> ------------------------------------------------------------------------
> Dear NNN,
> We would like to respond to the minister's invitation for submissions
> regarding a review of copyright and related rights.
> The Irish Free Software Organisation represents the interests of Free
> Software in Ireland.  Here, 'Free' refers to freedom rather than price
> --- Free Software confers on its users the right to run, study, change
> and distribute it.  A great deal of innovation and technological
> progress has been made possible by Free Software.

Might be good to also emphasise the current and potential economic
value that is realized in free software.  And how vital it's
protection is to Irish internet based economic growth opportunities
ranging from IP telephony to virtualized on demand software services -
avoiding the term 'cloud' out of some deference to RMS :-)

> We welcome the minister's reference to a US-style 'fair use' doctrine,
> and we urge him to learn from the unintended consequences of their DMCA
> legislation.  Purchasers of, for example, DVDs have fair use rights, but
> cannot enjoy them because of the encryption on DVDs.  Creators of tools
> for unlocking DVDs, restoring consumers' ability to exercise their
> fair-use rights, have been sued, and products withdrawn, thereby harming
> innovation and competition.
> IFSO acknowledges the need to prevent commercial-scale copyright
> infringement.

Call me radical, but I'm not too sure if the above accurately reflects
our (at least my) position.  Are we saying non-commercial copyright
infringement is OK?  Or are we rather saying that we want to keep
alive a set of reasonable actions which are not infringing on this or
any proposed copyright law.  Quite regardless of whether those actions
are for commercial gain or not.  The distinction between commercial
and non-commercial is anyway easily blurred.  We've all seen efforts
over the past five years to portray free software as being somehow ok
for non-commercial use.  I think one of the strengths of the GPL (and
most OSS licences as well) for example is it's refusal to discriminate
between commercial and non-commercial use.  I would rather say
something along the lines of:

IFSO acknowledges that creating the legislative conditions for a just
society and dynamic economic growth requires that holders of
legitimate copyrights are assured those rights receive requisite
protection.  But ...

>At the same time, the public's rights must be protected.
> The 'anti-circumvention' measures in the current law strike the wrong
> balance, and we urge the minister to reinstate the principle of s.374 of
> the Copyright and Related Rights Act, 2000, whereby 'rights protection
> measures' could not interfere with 'permitted acts'.

Quite regardless of anything I have suggested above ... good work and
thanks for taking this effort forward.


> The public must also have the right to use their own electronic devices
> as they wish.  Often this means using different software to that which
> the manufacturer supplied, but doing so in the USA has proved legally
> risky, because of abuse of the DMCA.  For example, Texas Instruments
> threatened people who described how to write and use new software for
> its calculators.
> Computer software is playing an increasingly important role in many
> products.  In the US, this has opened the door to abuses of the DMCA,
> with the result that beneficial innovation and competition is hindered.
> The printer manufacturer Lexmark, aiming to maintain its monopoly
> position in the lucrative market for refills, sued under the DMCA to
> prevent a company distributing a component which would have enabled
> other manufacturers to create compatible refills.  As another example,
> Microsoft is currently trying to use the DMCA to stifle the market for
> accessories for its Xbox, to give itself a monopoly.  These cases, and
> other similar ones, illustrate how copyright law is being abused to
> prevent competition and innovation.
> Although some such cases were ultimately resolved in favour of the
> innovator, the fear of being drawn into a very costly legal battle has a
> chilling effect.  We urge the minister to ensure that legitimate
> competition in all markets is encouraged.
> Finally, in the area of computer security, high-quality academic
> research in the USA has often been suppressed because it exposes flaws
> in a product.  It is generally accepted that computer security, vital in
> this age where more and more business is conducted online, is best
> advanced by full and open discussions.  We urge the minister to ensure
> that the carrying out, publication and discussion of security research
> is permitted.
> In summary, we hope the minister will seize this opportunity to restore
> balance to copyright law, allowing the public to enjoy their rights, and
> fostering innovation and competition.
> Thank you for your consideration of this submission.
> Yours faithfully,
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