The US’s Special 301 report which tries to paint several countries as piracy havens has always generated sceptical interest – with increasing emphasis on ‘sceptical’. Now a new kind of report which shows human rights with respect to access to knowledge has been released.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
Every year, there is always the increasingly controversial special 301 report which targets countries for not tightening down on copyright laws. The report is noted to have significant ties to major record labels and movie studios and their demands on other countries. Now, a new kind of report which the Electronic Frontier Foundation has described as being “created to highlight how countries’ laws actually fare in facilitating A2K and to act as a counterbalance to the annual Special 301 Report produced by the US Trade Representative.”
A2K is short for Access to Knowledge. The report says that “in this survey we use a composite measure of 60 criteria, developed and weighted by experts from around the world. But in simple terms, we are interested in how balanced the country’s copyright law is, whether it is enforced in ways that impact consumers’ interests, and whether the country fosters the exchange of knowledge in forms that are not encumbered by exclusive rights.”
In short, how well are your rights protected in different countries with respect to intellectual property laws and knowledge? The report certainly demystifies consumer rights on the world stage and even ranks the surveyed countries by a grading system similar to that of a standard school system grades. The report explains, “A represents a good score, that shows that consumers’ interests are being observed in this area. B, C and D are progressively not so good… and F is a fail.”
As a feature, they ranked the top ten best countries and the top ten worst countries. The report ranked India as the best ranked country for protecting consumer rights while Chile was ranked as the worst country for protecting consumer rights.
We looked for countries that have been making their way in to the headlines here and the United States ranked at number four for protecting consumer rights. No doubt, the concept of fair use has played a roll in boosting that countries rankings. The US got a B overall boosted by a strong access to knowledge online, for libraries and the disabled. However, there was room for improvement as the US got a ‘D’ in the category for administration and enforcement as well as ‘c’s in education access, press access and freedom to share and transfer information.
The fair use regime has been a topic for quite some time in Canada’s copyright debate for some time. Many argue that Canada needs a much stronger fair dealings regime as seen in the United States, but Canada wasn’t seen on either list. While it’s both good and bad news for Canada, there were some interesting highlights in Canada’s ranking. Overall, Canada scored a ‘C’ with high marks for access to knowledge for the press and the disabled. Canada lost major marks for access to knowledge for public affairs, for home users and content creators. Canada even received an ‘F’ for the category ‘Freedom to share and transfer’ content.
The United Kingdom scored a C- while Sweden, Spain and Australia scored B-‘s respectively. France and Germany were not surveyed.
The report also noted a few patterns saying, “the category in which most countries bombed out was in ‘Freedom to share and transfer’. This means that no countries are doing very much to promote consumers’ freedom to share information and knowledge with their neighbours. They could do better if they devoted resources towards maintaining and promoting public domain material (to which no copyright applies), encouraged the take-up of Creative Commons licences and open source software, and helped to unlock the value of ‘orphan works’.”
The report further explains, “The category in which most countries did best, on average, was in freedoms to access and use by the press. Whilst that’s certainly nice to know, it must be said that this is the probably the single category which has the least direct relevance to consumers.”
Fair use in the United States was a topic discussed in depth. From the report:
There are many uses of copyright materials that are allowed under US law as ‘fair use’, that would not be allowed under the more specific exceptions of other countries. These include new and innovative uses of copyright works, such as the production of audio and visual collages or ‘mash-ups’, as well as more prosaic uses such as transferring music to an MP3 player, or recording your favourite television show to watch later. Businesses, too, can benefit from fair use — for example, the way in which an Internet search engine operates, by providing short excerpts from websites and thumbnail pictures of images, relies on this exception. The fair use exception of US law is not perfect. Because it is by nature so imprecise, it is difficult to be certain whether a given use falls within the exception or not (in fact, fair use rights have been more cynically described as ‘the right to consult a lawyer’). For this reason CI advocates the adoption of a fair use exception as a supplement to existing more specific exceptions, not as a substitute for them. Fair use, in
other words, should operate as a ‘catch-all’ exception, to ensure that consumers do not become unwitting infringers when copyright laws fall behind.
This certainly rings true for Canadians for instance. Supporters for consumer rights have long been advocating that if copyright laws were to be amended, then Canada’s “Fair Dealing” regime should be more closely aligned with the United States ‘Fair Use’ regime, however, lobbyists and others who represent the opposition to consumer rights have long argued against it saying that this move would be a disaster. So really, for as many faults the US has about its copyright system, it at least has a more reasonable approach for use of various works through the system of Fair Use, however many ways it could become undermined by anti-circumvention laws. As an example, just image when satirical examination has been pretty much wiped out of fair use and it would be more in line with Canada’s fair dealings because it’s much harder to argue parody in Canada for use of copyrighted works.
Other Topics of Interest in the Report
The report also specifically talks about file-sharing. It argues that there is a body of evidence that argues that copyright-reliant industries have actually benefited from file-sharing rather then experience major losses as they have so adamantly argued for years. The report suggests that even if it were true that these industries experienced great losses due to file-sharing, that clamping down on file-sharing is only one possible solution because innovative business models are another possible solution to this problem. Interestingly enough, it highlights the Songwriters Association of Canada’s (SAC) proposal which proposes to put a blank levy so that file-sharing can continue while creators can get paid. While the proposal was endorsed by several in-country labels, it was blasted by the labels of foreign influence as a “pipe dream”.
Of course, the report also discussed the “graduated response” or, as most know about it today, the three strikes regime that seems to be wafting its way through the world from government to government.
“The main problem with such a regime is that, even if the allegations against the Internet users are proved true,” the report explains, “the remedy granted is quite disproportionate to the offence. The results of a global BBC survey, released last month, reveal that almost four in five people around the world believe that access to the Internet is a fundamental right.”
One other particularly notable topic was the use of copy controls or Digital Rights Management (DRM). The report notes that “often DRM systems are used for purposes that are quite extraneous to copyright law.”
It explains that through laws like the Digital Millennium Copyright Act (DMCA) from the US, even if one uses a work for the purpose of fair use, anti-circumvention laws disallow those uses because of anti-circumvention laws. The report describes using anti-circumvention laws to override fair use-like laws as “particularly troubling”
Overall, this was certainly an enlightening report to read. It will be interesting to see how reports like this evolve in the future. Certainly something to keep an eye on.
Drew Wilson on Twitter: @icecube85 and Google+.
