Article 11 of the World Intellectual Property Organization’s (WIPO) 1996 Copyright Treaty (which is in force in 9 of the 12 TPP negotiating countries) contains a provision for legal protection against the circumvention of technological protection measures (TPMs). TPMs are part of digital rights management (DRM), types of technologies that can “lock” a file, sometimes restricting or preventing any attempt to convert or transfer files. TPMs can help content companies control how citizens use the content and digital devices they own. From the content companies’ perspective, a “single file” understanding of content means customers must purchase multiple versions of a file if they wish to access it in different formats. This “one use single file” deviates dramatically from most users’ understanding of media commodities - users see themselves as buying the content (i.e. the song, the book) not the single file. Were you to purchase a CD, you certainly would not think that you needed two copies in order to play it on the devices in your home and in your car.
“I moved from the UK to Canada five years ago and I’m forced to choose a location in order to access digital media on my devices, yet certain content is not always available ‘in my region’ (i.e. BBC programs, iTunes purchases). Since I don’t want to lose access to the media I’ve previously bought, I keep my devices registered to the UK. As such, I don’t buy much digital content. Considering how ultra- mobile people and their devices are, it’s time we scrapped regional and device-related restrictions so we can experience any media, regardless of our location, region or devices.”
Given the possibility of the open Internet to make knowledge and culture more affordable and easy to access, requiring people to pay and purchase more than they would have for the non-digital versions is a clear step backwards, not forwards to a future where free expression flourishes.
More seriously, without significant exceptions made for persons with perceptual disabilities,43 digital locks can make it nearly impossible and illegal for the vision impaired to convert digital files into audio format, or do other kinds of format shifting required for accessibility reasons (see Image 1). Enlightened policy would see incentives for new titles to be made available in accessible formats, at the point of publication.44 The status quo sees the interests of Big Media companies elevated above those of vision impaired users; vision impaired users must not be prohibited from creating or format shifting their own content. Media files cater to individuals without any disability – as our society becomes an information society, we cannot let individuals with accessibility concerns become even further marginalized.
“As a part of the special needs community, I want to be able to continue sharing resources with others without the fear of sanctions – as a community we are often isolated and without the Internet, we would be even more so.”
Unfortunately, the “one use single file” approach to copyright law with minimal exceptions would likely be widely institutionalized by the TPP. Leaked drafts from February 2011 show that the TPP would push stricter anti-circumvention policies than those found in either the WIPO Copyright Treaty or the US DMCA, including liability for circumvention even if it did not involve copyright infringement (i.e. if the digital lock was broken in order to facilitate a fair use of the content), and mandatory prison sentences for criminal anticircumvention violations.45 If the TPP goes through in its present form, vision impaired people everywhere could suffer a great loss to their free expression rights in our digital society.
With our drag-and-drop tool, we asked citizens what kind of liberties they should have when it comes to accessing and altering content that they have purchased in a digital format. The results indicate a strong belief in a high degree of flexibility and individualization. When asked about their expectations after purchasing content (i.e. music, ebooks, movies) online, less than 10 percent of 9,059 respondents selected options that did not include the possibility of modifications for special needs, and only 0.7 percent agreed that content should only be used on the device used to purchase it. The highest percentage, at 51.7 percent, selected “I expect to be able to use it on any device I own, modify it for my special needs, & share it with friends as I would a physical copy,” while 17.4 percent selected “I expect to be able to modify it in any way I see fit, and make it available for free to anyone online, as long as nobody profits from it.” These results suggest that participants in our crowdsourcing process firmly believe that Internet users should have the right to tailor and customize content to their own, unique needs, and are against a single “copy” understanding of content.
The overwhelming majority (i.e. 69.2 percent) of respondents to our crowdsourcing question believe that paying for content means being able to share and modify the content to their needs. We therefore join Article 19 by supporting their 12th principle on free expression and copyright in the digital age: “The criminalisation of circumvention of digital rights management software is an unjustified restriction on freedom of expression and should be abolished”. There should also be no penalties for DRM circumvention to allow legal uses of content (i.e. circumvention of regional zone access protection). We also stand with experts, small businesses, Internet freedom advocates and other online innovators in supporting the goal of the FixTheDMCA.org campaign, supporting a repeal of the anti-circumvention clause in the DMCA.
The issue of intermediary (including ISP) liability brings up another concern related to ease of Internet access: the affordability of Internet services. ISP liability refers to the potential for ISPs to be responsible for the copyright-infringing behaviour of their customers (see Box 3 in this Chapter), and possibly made to pay damages to the rights holders, or buy insurance to protect them from such occurrences. This is the type of system proposed in a discussion paper in July 2014 by Australia’s Attorney General George Brandis,47 and found in leaked drafts of the TPP,48 despite the fact that that there is little evidence that these systems work to reduce infringement.49
In the case that these rules are implemented, ISPs would inevitably pass these costs onto their customers, thereby making the Internet more expensive for everyone.50 Of the 9,386 respondents to a question posed in our crowdsourcing process about responsibility for copyright enforcement, only 11.3 percent believed ISPs should be the ones responsible – the majority believed that either law enforcement officials (35.1 percent) or the copyright holders themselves (48.1 percent) should be responsible.51 In other words, our respondents do not believe in ISP liability - they don’t want ISPs to become de facto copyright police. Similarly, respondents did not believe ISPs should be forced to share our private data: only 1.9 percent of those who answered the germane question (9,567 respondents) in our drag-and-drop tool believed ISPs should share user information with any copyright holder who asks for it. Most respondents believed that court orders or judicial authorization should be necessary (72.3 percent), or that ISPs should not share our information at all.52
Like the question of DRM and digital locks, we need to take Internet users’ perspectives seriously, particularly since limiting liability for Internet service providers and other intermediaries is an accessibility concern. Many low-income communities still struggle to get or maintain access to the Internet,53 particularly in countries where the Internet service market is very concentrated. A report for Industry Canada from 2011 found that “many of the smaller ISPs would be out of business ‘within the hour’ or ‘immediately’ if they were held liable to cover the costs of copyright infringement at rates proposed by some of the content industry players (in this specific case, rates proposed by the Society of Composers, Authors and Music Publishers of Canada)54 The same report recognized that the lower administrative costs of notice-and- notice as compared to notice-and-takedown were a positive implication of the former system. We therefore have even more reason to support a notice-and-notice-style system, and to stand with Article 19 in their 10th principle for free expression and copyright in a digital age: “Intermediaries which provide services, such as providing access, or searching for, or the transmission or caching of information, should not be liable for infringing content disseminated by third parties using those services.”55