The TPM Provisions in Bill C-32 Are Not In Compliance With The WIPO Internet Treaties

Oh dear, here we go again.

Unlike most of the rest of the people commenting on Bill C-32 I’ve actually read the WIPO Internet Treaties. Heck, I’ve even quoted them often enough. You can read the specific treaty in question in PDF form here or read the text online here. At this point I’m going to be really nasty. Have you ever wondered why I’m the only person who is willing to post a link to the treaty? Don’t you think that it’s curious that Michael Geist, Barry Sookman, James Gannon, Howard Knopf, etc., etc., etc. never give you a link so that you can read the treaty on your own? Curious, isn’t it.

Specifically I want to look at Article 11, Obligations concerning Technical Protection Measures which reads:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Note the word authors, which is used twice in the text. But what does the treaty mean by this? Since the treaty does not give a definition of the word ‘author‘ anywhere within it’s text, it means that the word is considered so well defined, that the treaty did not need to give a definition. So let us turn to our old friend dictionary.com for a definition.

AUTHOR

–noun

1. a person who writes a novel, poem, essay, etc.; the composer of a literary work, as distinguished from a compiler, translator, editor, or copyist.
2. the literary production or productions of a writer: to find a passage in an author.
3. the maker of anything; creator; originator: the author of a new tax plan.
4. Computers . the writer of a software program, esp. a hypertext or multimedia application.
–verb (used with object)

5. to write; be the author of: He authored a history of the Civil War.
6. to originate; create a design for: She authored a new system for teaching chemistry.

By the usage of the word in the treaty, it’s a noun, so we can ignore the verb definitions. Let’s take the noun definitions one at a time.

1. a person who writes a novel, poem, essay, etc.; the composer of a literary work, as distinguished from a compiler, translator, editor, or copyist.

So by this definition, I am the author of this blog, just as James Gannon is the author of his blog, and Roy Schestowitz is the author of his blog.

2. the literary production or productions of a writer: to find a passage in an author.

So this would cover the works written by a writer, such as the books written by Tanya Huff, the songs written by Brooke Lunderville, the poems written by Ann Margetson, etc.

3. the maker of anything; creator; originator: the author of a new tax plan.

This is the widest definition yet. In theory this makes my wife the ‘author’ of her quilts, since each quilt she makes is designed individually for her customers (to the best of my knowledge she has NEVER made the same quilt twice, and I live with her quilting – heck I help with it when I can, which considering my limited sowing skills mostly involves holding things). In theory I suspect that certain people would like to stretch this to cover the manufacturers of Compact Discs and Digital Video Discs. But the words ‘creator‘ and ‘originator‘ are also used, and those have very specific definitions which have nothing to do with manufacturing.

4. Computers . the writer of a software program, esp. a hypertext or multimedia application.

Which would have covered me, back when I was still writing software, including designing my own Technical Protection Measures. In fact I still hold the copyright to those programs, even though they are useless now, since the original reason that they were written is now obsolete.

What does this mean? Simple. If the Canadian Government does decide to include some protection for Technical Protection Measures, it is only obligated to do so IF THE AUTHOR OF THE WORK DECIDED TO USE THEM. That is what the WIPO decided, and that is all that is required.

So where does this leave Apple, with it’s highly touted ITunes App Store? Apple automatically adds Technical Protection Measures to every application that is sold through the App Store. If the author of the application states that they did not want the Technical Protection Measure used, then according to the WIPO Treaty, you are free to break the TPM.

This means that the Digital Millennium Copyright Act of 1998 (PDF warning) that the United States is so proud of, is not in compliance with the WIPO Treaty, and has never been in compliance with it. Isn’t it wonderful what you find out when you read the actual source documents? Doesn’t it make you wonder exactly why all of the commentators aren’t telling you the truth, the whole truth, and nothing but the truth?

The problem is that the Recording Industry (as separate from the Music Industry) is suffering from sales drops, and is panicking. In effect the Recording Industry has become obsolete, and they are fighting to try and retain some relevance. Any relevance. And they probably could except for one thing. A couple of days ago I published an article on Canadian military procurement titled F35 Joint Strike Fighter – The Biggest Procurement Mistake Ever in which I mentioned political instability in the United States. The article was published before their election, and my concerns about American political instability were based solely on the news articles of the time. It appears that things may be far worse than I thought. The new composition of the House of Representatives are going to push for enormous spending cuts, which is almost certain to turn the current Recession into a Depression, right behind the Brits and Irish. As the economy gets worse, they will probably attempt to cut spending further, possibly putting the United States economy into a death spiral. And of course if consumers don’t have money, they don’t spend it on things like music. It is quite possible that we could see one or more of the large Recording Industry companies forced into Chapter 11 Bankruptcy in the near future, because their customers won’t have any money to spend.

And of course downloaders will get the blame.

As a final note, since I’ve mentioned certain people in the first paragraph, I will of course contact those people to let them respond if they so choose. I look forward to hearing their comments.

Regards

Wayne Borean

Thursday November 4, 2010

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4 Responses to The TPM Provisions in Bill C-32 Are Not In Compliance With The WIPO Internet Treaties

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