Happy World Intellectual Property Day?

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This work is copyright 2004, Russell McOrmond, and licensed under a Creative Commons License.

April 20, 2004, Russell McOrmond1

Dear Susan2,

Today is April 26, 2004 which the World Intellectual Property Organization has declared World Intellectual Property Day3. To mark this day the coalition of creators and other citizens I work with have launched4 a Petition for Users' Rights5. Neil Leyton of Fading Ways Music also sent out a press release6 critical of WIPO policies and the views coming out of Heritage. He was also announcing music his independent label has released under a Creative Commons license.

I consider copyright to be the delicate balance between a number of rights including communications rights, cultural rights, and creators' rights7. While all Canadians are “rights holders”, indications recently from parliament indicate that they are forgetting rights holders other than the large intermediaries. In response to the Juno weekend scandal largely created by the past Heritage Minister8, officials from that department have been quoted as saying, "our job is to try to protect the Canadian music industry”9

You may be curious why our community is so worried about the ratification of the WIPO copyright treaties, specifically articles relating to legal protection for technological protection measures10 (TPM) that formed the basis of the worst parts of the USA's Digital Millennium Copyright Act11 (DMCA). To clarify this I want to remind you of some the discussions from when we participated in a live debate on copyright reform for Rabble Rumble12.

Copyright only protects the expression of the work?

In your introduction to the debate you tried to clarify that copyright only protected the expression of a work, not ideas or facts. In the open question and answer section, Michael Richardson13 spoke about Application Programmer Interfaces. His claim was that copyright did protect far more than just expressions of ideas the way it was being applied to software.

In your reply you spoke about how you print everything and don't believe something is real unless it is on paper. While it is conceivable for you to revert back to manual typewriters if electronic media becomes too centrally controlled to be usable, this is not feasible for many in our society. There are entire branches of creativity where electronic creation, storage and communication is the only possibility. While you can print sheet music onto paper, it is very hard to do this with a multimedia recording of a performance.

One of the problems with copyright is that it is a blunt instrument and treats quite dissimilar things the same. While I believe that software is a creative work, and copyright is the right starting point for protecting software creativity14, I do not believe that all concepts from books can be directly applied to software. There are aspects of software that make it unique, requiring additional exceptions to copyright protection that are not necessary in other forms of expression.

With a book the interface between the author and the reader is well established over hundreds of years. There is no monopoly control over alphabets, dictionaries, the right-to-left, left-to-right, top-to-bottom ordering of the letters (depending on language), or other aspects of this interface. Anyone with adequate eyesight can see the letters on the page, and there are standardized mechanisms to create books for the blind. Any writer can exercise fair dealings rights and quote excerpts. Facts and ideas are not offered copyright protection as part of a well understood requirement for balance.

Software is different

Software is not only a work under copyright itself, but is used by other creators to create, store and communicate their works. If the exclusive rights for software creators are too strong it will not only affect follow-on software creativity, but also the rights of the creators and audiences of any work that is communicated electronically.

The critical problem we are fighting against is exclusive rights on what are called interfaces. This can be the interface between humans and computers (user interfaces), between software and hardware, and between different software (file formats, communications protocols, and Application Programmer Interfaces – APIs).

In the past these interfaces were treated similar to facts that could be discovered and re-expressed. It was considered a right to decode these interfaces using various techniques (including what is called reverse engineering) in order to interface with existing hardware or software, or to duplicate in alternative software the user interface of any existing software.

I will quote from the history document of the League for Programming Freedom about the beginnings of what started to change.

In 1989, Apple's look and feel lawsuit against Microsoft brought the idea of interface copyright to the attention of the programming community. Apple was trying to claim a monopoly over a broad class of graphical user interfaces. If Apple succeeded, not only Microsoft, but every software developer, would be legally compelled to design gratuitously incompatible software.

In response, John Gilmore and Richard Stallman together commissioned the design of the "fanged Apple"--a button showing the Apple logo with vicious teeth. This was followed by an advertisement placed in The Tech, MIT's student newspaper, which in turn led to a protest rally at the HQ of Lotus Development Corporation--another "look and feel" lawsuit plaintiff.

The enthusiastic response to the first protest led to the formation of the League for Programming Freedom in late 1989.15

It is hard to make analogies between software and books, but claiming a monopoly on an interface is like claiming a monopoly on a language or alphabet. Writers rely on the fact that their readers are literate in the same languages, and granting a copyright on “English” or some other language would be considered ludicrous. There may be a considerable creativity within the design of a language or the artistic expression of an alphabet, but it is understood that the costs of granting this type of monopoly is far greater than any claimed benefit.

The League for Programming Freedom is based in the United States. Currently in Canada the right to reverse engineer existing interfaces is offered as a defense against infringement. While we believe it should be encoded in law as a positive right and not a defense, we are still in a better situation than the USA who created the DMCA and already ratified the WIPO treaties.

While the WIPO copyright treaties claim that the sections on Legal protection for TPM relate to protecting copyright, it is really just a back-door to interface copyright. This will be as harmful to all creators using digital tools as having exclusive rights to a spoken language or alphabet would be to an author. All a software vendor needs to do is claim that their interface monopoly is an “effective technological measures that are used by authors in connection with the exercise of their rights”16 and the right to reverse engineer to create compatible independent software is revoked.

The shortest way to explain these sections of the WIPO treaties is to say that they are not a protection of copyright at all, but a replacement of copyright where what you can or can not do is codified by software vendors and enforced in software rather than a balance of rights coded in law by parliamentarians and enforced in courts17.

Court cases in the USA have shown us that circumventing these interface monopolies for legal purposes will cause litigation. When I watch DVD movies I do so using legal FLOSS18 software which, being FLOSS, necessarily discloses the methods used to decode the movie. Because the DVD CCA cartel created the CSS interface monopoly which they claim is a TPM to protect copyright, the USA considers all the different expressions of this decoding to be illegal. Not only do I not recognize this software as being illegal, but I consider the activities of the DVD CCA to be in violation of section 77 of Canada's Competition Act19.

Two years ago we were talking about this, and talking about a need for creators to get together to protect their rights in the face of these provisions in the WIPO treaties. Unfortunately this has not happened yet. I hope that World Intellectual Property Day can be used as a day to encourage the organizations you are involved in such as the Creators' Rights Alliance and Writers Union to think about these issues. These provisions appear to be the greatest threat to Creators' Rights at the moment, and yet the most recent public statements from CRA has been in support of this attack on creators' rights.

1Full contact information for Russell McOrmond can be found on his work website at http://www.flora.ca/ (Accessed March 30, 2004)

2An index of letters can be found at http://www.flora.ca/creators/ (Accessed April 10, 2004)

3More information is online at http://www.wipo.int/about-ip/en/world_ip/2004/ (Accessed April 24, 2004)

4http://www.digital-copyright.ca/petition/press20040423.shtml (Accessed April 24, 2004)

5Petition is at http://www.digital-copyright.ca/petition/ (Accessed April 24, 2004)

6Fading Ways on the WIPO's "encouraging creativity" http://www.digital-copyright.ca/discuss/2872 (Accessed April 24, 2004)

7These are articles 19 and 27 of the United Nations Declaration of Human Rights http://www.un.org/Overview/rights.html (Accessed April 24, 2004).

8The scandal I refer to is the Private Copying regime which made legal any unauthorized copying of music for private use, including “downloading” form the Internet. I wrote about this in my April 20 letter.

9Marc Roy, spokesman for Helene Chalifour Scherrer, Financial Post, April 2, page 1
http://www.digital-copyright.ca/discuss/2577 (Accessed April 24, 2004)

10Article 11 of the WIPO Copyright Treaty http://www.wipo.int/clea/docs/en/wo/wo033en.htm#P88_11974 (Accessed April 25, 2004) and Article 18 of the WIPO Performances and Phonograms Treaty http://www.wipo.int/clea/docs/en/wo/wo034en.htm#P143_21153 (Accessed April 25, 2004)

11Information and unintended consequences of this act can be read at http://www.eff.org/IP/DMCA/ (Accessed April 25, 2004)

12Articles can be read at http://www.flora.ca/creators/crean20021029.html (Accessed April 25, 2004) The archives are still on-line. Direct links to the Audio and Video archives can be found at http://weblog.flora.org/article.php3?story_id=267 (Accessed April 25, 2004)

13Mike Richardson http://www.sandelman.ca/People/Michael_Richardson/Bio.html (Accessed April 25, 2004) is an Internet security consultant and one of the primary people at Xelerance Corpiration http://www.xelerance.com/ (Accessed April 25, 2004)

14I disagree with various industrial associations that consider software to be “industrial property”.

15History of the LPF http://lpf.ai.mit.edu/History/history.html (Accessed April 25, 2004)

16IBID 10

17To see the level of Orwellian double-speak, read the `Trusted Computing' Frequently Asked Questions document http://www.cl.cam.ac.uk/~rja14/tcpa-faq.html (Accessed April 26, 2004) which explains that a trusted computer is a computer that you as owner can not trust because third parties like software vendors and media companies can.

18Free/Libre and Open Source Software (FLOSS) http://www.flora.ca/floss.shtml (Accessed April 25, 2004)

19I have a complaint before the Competition Bureau about this allegation. I first wrote about it in 2001 with my reply to theCanadian Motion Pictures Distributors Association (CMPDA) submission to the ongoing consultations. http://www.flora.ca/copyright-2001-cmpda-reply.shtml (Accessed April 25, 2004) I then made a detailed submission to the Competition Bureau http://www.flora.ca/competition2003/ (Accessed April 25, 2004)