CMEC to Creators: Use TPM to protect your work
The Council of Ministers of Education recently posted a press release (PDF) on Changes to the Copyright Law Must Include An Amendment to Address Educational Use of the Internet (also available in French).
Although they start with clarity by highlighting the problems of educational use of materials under current copyright law, they make the surprising comment that anything provided online by content creators is free if it is made available without password protection. Pressing even further, they seem to be supportive of protection of copyrighted materials to a much more draconian extreme than even creator lobbyist groups suggest:
“Free stuff” refers to material posted on the Internet by the copyright owner without password protection or other technological restrictions on access or use. “Free stuff” is posted on the Internet with the intention that it be copied and shared by members of the public using the Internet. It is publicly available for anyone who wants to use it, but the current copyright law may not protect schools, teachers, or students even when they are making normal educational uses of this “free stuff.”
This is an absolutely shocking statement, because I (and I believe many other creators) provide their “stuff” online without “without password protection or other technological restrictions on access or use” because I want to allow free access to the work and to not unnecessarily hinder any fair dealing of the work. I do not understand how, or support the argument, that by not employing “password protection or other technological restrictions” I am automatically releasing the work as royalty-free content. I sincerely hope that the statement made by CMEC was intended to address educational use only, which is currently an exception carved out in the Copyright Act.
…the federal government needs to change the Copyright Act to make it clear that this “free stuff” is available for all educational uses. …rights holders can opt out of the amendment by using passwords or technology that limits access or use of the Internet material. Rights holders can also opt out by informing Internet users that the material cannot be used for educational purposes.
Although I recognize the need for a better administrative system for educators to access works which are truly available royalty-free, I don’t believe this is the best way to achieve it. The Creative Commons licenses already exist and are in wide use (the content of this blog, for example, is made available under the Creative Commons Attribution-NonCommercial 3.0 License). While I do think that creators should be allowed to use TPMs, and allow the market forces to decide whether that is a viable business model, I’m unsettled by the thought that I would need to employ TPMs to lock out educators, or somehow meet a set of criteria for clearly marking work as not being available for royalty-free educational use.
Tags: Canada, cmec, copyright, education, internet, legislation, technology, tpm
I’ll be blogging about this issue more, but the problem is the use of the acronym “TPMs” which means entirely different things for different people. Yet again in the Copyright debate we have people talking across each other using the same language with entirely different meanings, and not stopping to try to figure out what each other is saying.
Using technology to automatically convey licensing terms (Technical Information Measures? ) is not at all the same thing as using technology to try to enforce licensing terms (Which requires that the owner of the computer doing the enforcement not be in control of their own computer). One is required in order to make copyright and communications technology work well together (TIM) and the other is extremely harmful to both copyright and technology (DRM, etc).
In this issue I believe that what the educational community and the copyright lobby are asking for are extreme, neither is reasonable or workable, and thus a more rational middle-ground is needed.
The first thing to realize is that most works on the Internet are distributed by non-professionals who do not indicate any licensing terms at all. If this is the case, what is the implied license agreement?
Should Google and Archive.org be considered legal? How about a browser, which always makes copies of pages before it displays them. If so, then the ability to both make copies and create indexes and archives must have been implied to be allowed royalty free. Asking for royalties to access, index, or archive and republish these works in a royalty-free way seems to me to have been authorized. There are very simple “Technical Information Measures” to automatically indicate that you don’t want your website indexed or archived. If you don’t have technical staff able to configure your site with these correct indicators if you don’t want your site indexed or archived, then you have a human resources problem and not a copyright problem.
What about derivatives? This is where I believe the educational sector goes too far in believing that works put on the Internet are free for them to take and make unauthorized derivatives. To me if they want to make a derivative they should have to ask permission, with many people already giving that permission via CC or similar licenses. If the copyright holder didn’t explicitly say, then they should be asked.
What about commercial uses where royalties/etc are made? This is something you have already commented on elsewhere where larger corporations are taking things from the Internet without permission and then distributing them as part of their commercial for-profit networks. See the January 24 episode of CBC’s Search Engine for an example. This is clearly unreasonable.
Then there is the most heated issue, which is whether making multiple copies for classroom use is a “commercial use”. If you happen to be in the educational marketplace then your answer is always going to be “yes”, but this is an issue where even US law sides on the side of the educational sector by saying that multiple copies for classroom use is fair dealings.
Any use of acronyms and terminology is becoming more and more cumbersome. I usually try to link to a Wikipedia or other article for some acronyms/terms for clarification, but forgot to for “TPM” above. I’ve updated the post to include the link.
I think many of these extreme proposals are the result of not wanting to be trumped–a sad exercise in reaction rather than action.
The question of whether archiving is legal is a much larger issue. I have some thoughts on that, and will try to remember to write a post on that topic.
Where the “educational use” situation is becoming muddier and muddier is, of course, relating to money. Both public and private schooling systems involve huge amounts of money exchanging hands. While public schools are sadly underfunded, that issue needs to be addressed separately from the issue of how creative works should be handled in an educational context.
The issue of money is a problem.
School Boards have an easy way to solve their own problems, and are just being lazy with their exception proposal. Some in the sector, especially Universities, are also thinking like for-profit corporations and wanting to receive royalties on the creativity that comes out of these publicly funded institutions — trying to have it both ways.
The most expensive creativity involved is work created largely by one part of the educational sector for use by other parts of the educational sector — non-fiction textbooks and the like. Educational funders end up paying for this work multiple times — paying the person who authored the work, and then paying for copies to be made.
As MIT and others have demonstrated, this is the ideal type of subject matter to move to Open Access publishing where you pay the creator once the work they do, and then allow unlimited royalty-free copying after. This method of production is generically called Peer Production, and works well for certain types of works such as productivity software, non-fiction educational material, as well as scientific and medical information. Entertainment software, fictional novels, and other such material have an entirely different economic environment which don’t lend themselves to peer production generally (although there are always special cases).
This is part of why I believe both the old-method creators and the educational sector are wrong on this. It isn’t just about creators getting paid for their work, but about an antiquated method of production, distribution and funding of creativity ripping funding out of an educational sector that needs that money for far more important things.
We know politically that the educational sector isn’t going to get adequately funded any time soon, so these old-method publishers are really taking teachers out the classrooms (most of their assistants like lab technicians are long gone) or students out of educational field trips.
In most cases it is unnecessary publishers, not the creators, who get the bulk of the money we are discussing here — This really isn’t a creators’ rights issue at all.
As you know, some of the teachers are on-side with the CCC position on this. I really believe this is one of those issues where the government needs to step in. In the US there is already requirements for Open Access publishing of the results of government funded research, and there is similar movement in Canada. Something similar will need to happen within the Canadian provincial educational sector where Open Access publishing becomes mandatory for various types of funding, possibly even down to the level of teachers salaries. We’ll then see if the teachers unions will really argue that a tiny number of teachers receiving royalties is worth trading off for more critical educational funding in other areas. Who knows, they might even get their lab technicians back with the money freed up this way.
And I would love to see Universities forced to decide if they are an educational institution (and thus benefit from any educational exceptions, public funding, etc), or they are a for-profit corporation (and thus can receive royalties from works created by the institutions). They should not be allowed to have it both ways!
BTW: I know representatives of Access Copyright say differently, but this is an association that may claim to be 50/50 between authors and publishers, but is largely dominated by educational publishers. They have a very special interest in this debate in opposition to Peer Production, and are not really protecting the economic interests of authors.
I’ve just posted Technical Protection Measures (TPMs) and Educational Use of the Internet, and am curious what your comments are.