RE: Publisher's association on DRM

[Edward Barrow <edward@xxxxxxxxxxxxx>]

I am not sure where to begin in response to this, or indeed whether a 
piecemeal response to the many points made by Mr Johnson will be 
constructive.

First, I believe he is conflating the two WIPO treaties, on copyright and 
on phonograms and performers. Both have limited support for digital rights 
management, in particular anti-circumvention provisons. Neither, however, 
mandates DRM as such.
Secondly, on the question of Western European ratification of the treaties. 
The member states of the EU will ratify the treaties together when the 
implementing legislation is in force in the European Union. This will 
happen on December 22nd this year (implementation, not necessarily 
ratification, but it can then follow) when the Directive on Copyright and 
Related Rights in the Information Society becomes Union law. The member 
states should by then have enacted their own implementing legislation; it 
is only this process which has prevented these nations from ratifying the 
WIPO treaties earlier.

Now to consider some of the other points. I am not about to defend the UK 
Publishers Association's position on DRM, nor am I able to speak for them. 
However, I think their position is basically balanced and sound. In 
advocating interoperable choice in DRM, they oppose both a mandatory 
solution and a monopoly solution. The lack of interoperability, in 
particular, will lead to monopoly solutions such as Palladium.  As Mr 
Johnson has indicated, overly-restrictive laws on  the re-use of content 
affect both users and producers such as publishers, and are in no-one's 
interests; and neither is technology which enforces them.

Yet a balanced debate on DRM is highly desirable, to which I think the PA's 
position contributes. It is clear to me, at least, that a market for 
information in which the costs of producing it are shared by many is 
preferable to one in which they are borne by the first consumer of an 
information product, or by the state or by commercial sponsors. As the 
Napster experience shows in the case of music, there are many people who 
are all too willing to let someone else pay for the music to which they 
listen. If DRM ensures that fewer dishonest people are able to free-load on 
the backs not of the producer, but of those honest people who do pay, then 
the honest will each have to pay less to ensure a reasonable return to the 
author, artist or musician.  If, however, it must be so draconian that it 
prevents fair and creative re-use of content (parody, criticism, research), 
then it will be more damaging. Furthermore, if it means that we are denied 
the right to read anonymously (and this is my greatest fear of many of the 
emerging DRM technologies) then it is a very serious threat to free speech 
itself.  But we should not dismiss the whole concept merely because some 
implementations of it are less than perfect.

Edward Barrow
New Media Copyright Consultant
http://www.copyweb.co.uk/
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On Tuesday, September 24, 2002 3:31 PM, Seth Johnson 
[SMTP:seth.johnson@xxxxxxxxxxxxxxxxxxxxxxx] wrote:
>
> A "right of integrity" coupled with mandated support for DRM
> (as you find laid out in the WPPT) is a far cry from a
> reasonable view of the rights of the public in information
> technology, and is a long stretch from what traditional
> "moral rights" meant before the digital age.

> Unless the trade association addresses the enabling
> international legislation, we have to be extremely dubious
> of positions that take a stance of opposing (national)
> legislated solutions, while turning around and proposing PR
> jobs like "DRMs should be positively presented as a
> publisher / customer facilitating medium and not a means of
> 'blocking' access."  The key factor here is, they are
> *still* endorsing DRM on the basis of a theory that the
> creator's statutory rights trump the public's, and evading
> addressing the fact that a "treaty obligation" is already in
> place!  They can certainly try to sell bottled up content
> for as long as they can, but until they address the WPPT's
> unprecedented notion of "moral rights," and until they
> address the enabling technologies (TCPA and Palladium) which
> operate on these terms, "no mandated DRM" positions have to
> be interrogated with a jaundiced eye.
>
> This is not at all an "authors versus publishers" matter.
> The WPPT simply takes advantage of unfortunate authorial
> rights analyses to rationalize even more draconian notions,
> which enable the publishers to transition themselves into a
> new era in which the public's (and all information
> producers'!) inalienable right to use information is
> ratified and instrumentalized out of existence, all
> supposedly for the sake of the creators.  Who do you think
> will modulate the inevitable, ludicrous future debates about
> where supposed "moral rights" end and the right to use
> information freely begin?  Not the authors.  Not the
> public.  Figure it out.
>
> Take away the WPPT, then come out against mandated DRM.
> Then we can take this sort of line seriously.
>
> By the way, the WPPT was only ratified on the basis of a
> required complement of 30 signatures, including only the US,
> Japan, and 28 other less-dominant nations.  None of the
> Western European giants signed it, including those that are
> the supposed models for the notion of "moral rights" it
> implements.
>
> Seth Johnson
>
> Edward Barrow wrote:
> >
> > Even if I agreed with your analysis of their position, which I don't, I 
do
> > not see what is wrong with a trade association in the United Kingdom
> > adopting a "moral rights" position, where moral rights have been part 
of
> > the law of the land since 1988.
> >
> > Edward Barrow
> > New Media Copyright Consultant
> > http://www.copyweb.co.uk/
> > ***Important:   see http://www.copyweb.co.uk/email.htm for information
> > about the legal status of this email ***
> >
> >  On Mon, 23 Sept Seth Johnson wrote:
> >
> > >Their game is to let the WIPO Performances and Phonograms
> > >Treaty do the work.
> >
> > >The notion they're trying to implement is the idea of "moral
> > >rights" -- saying that creators dictate what can be done
> > >with information.  The technologies on the table are all
> > >based on that ludicrous notion.  Once they get the
> > >technologies in place (and they are well underway), they
> > >will be able to act as if it's moral to restrict the public
> > >from parsing and processing information products.
> >
> > >They don't figure on trusting any particular national
> > >government.  Just buy them out while they work on schemes
> > >built on system architectures such as TCPA.
>
> --
>
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