Thursday, December 16, 2010

Future of WIPO's Development Agenda

A new article by Jeremy de Beer and I has just been published in the WIPO Journal. A draft version of the article is now available on SSRN. In this paper we present the results of a workshop held in March 2009. Scholars, diplomats, and WIPO staff contributed their thoughts on the future of WIPO's Development Agenda.

Foresight into the Future of Wipo's Development Agenda

The Development Agenda for the World Intellectual Property Organization (WIPO) was proposed in 2004 to reinvigorate the operations of WIPO, given its mandate as a special operating agency of the United Nations (UN).

Foresight into an array of alternative scenarios is not only warranted but necessary in order to cope with possible developments or, even better, to influence the future. Using the foresight research techniques of scenario building and backcasting, an expert working group met in Prangins, Switzerland, in March 2010 to discuss progress of the agenda's implementation, and to identify a range of future possibilities and corresponding strategic actions. This article outlines analysis and insights regarding the Development Agenda accumulated over several years of research and meetings, culminating in that retreat. It highlights a number of priorities and possible research directions, particularly in the context of a transition in strategic focus from short to medium and long-term thinking about the impact of WIPO's Development Agenda on global knowledge governance.

This article outlines, in the first part, the background of the WIPO Development Agenda and where it stands today. In the second part, the authors outline the immediate challenges and opportunities facing the Development Agenda, based on the insights and analyses of the working group, suggesting that the foresighting and backcasting methods used are useful instruments in planning and envisioning the future of the Development Agenda.

Saturday, November 13, 2010

Latif on WIPO reform

Ahmed Abdel Latif has an opinion piece in Intellectual Property Watch, following on Lawrence Lessig's recent visit to WIPO. Both ask whether the international intellectual property system is in need of fundamental reform. Lessig called for "an overhaul of the copyright system which he says does not and never will make sense in the digital environment." Latif argues that "Professor Lessig is right. His call for global copyright reform is welcome and timely. However, past WIPO led efforts in this area have rather been unsuccessful."
Past changes to the international copyright system, as embodied in the Berne Convention for the Protection of Literary and Artistic Works (1886), have mostly resulted in the strengthening of copyright rules to the benefit of rights holders. All attempts to reform it to the benefit of users of copyrighted materials, such as consumers and developing countries, have either failed or been of limited effectiveness such as in the case of the Berne Appendix (1971) which contains special provisions for developing countries.
The recent WIPO reform initiative embodied in the WIPO Development Agenda, he notes, is still underway, and Latif questions whether some current WIPO initiatives conform with the letter and spirit of the Development Agenda. He calls for reform that takes place through "an open, inclusive and participatory consultation process where ‘all of us’ have a say."

Tuesday, November 2, 2010

The perils of an E-book world

Morten Rand-Hendriksen has a great post called "The Perils of an All-digital World" about e-books, their relationship to democracy, and the future of access to information in a world of e-books.

Tuesday, October 26, 2010

Kindle lending

Kindle has announced upcoming functionality for the Kindle that will allow users to lend their books to others. The loan period will be 14 days and the book will be disabled on the home account while the loan is in effect.
While this seems like a nice little feature, it demonstrates an old-world mentality that emulates, rather than helping to overcome, the scarcity of books and reading materials.

Friday, October 8, 2010

Copyright: Characteristics of Canadian Reform

My chapter "Copyright: Characteristics of Canadian Reform" appears in Michael Geist's book, From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda. The book will be launched October 14 at the University of Ottawa. The introduction to the book, by Michael Geist, is already available online.

My chapter, available here and in revised format in the Hill Times, places bill C-32 in the context of Canadian copyright history, arguing that Canadian copyright has traditionally focussed on copyright independence, safeguarding the interests of Canadian consumers as well as Canadian creators, finding innovative solutions to meet the needs of both consumers and creators, and support for international copyright and copyright multilateralism. It argues that the made-in-Canada elements of C-32 are relatively narrow compared to previous bills that asserted a made-in-Canada stance on the broader issue of anti-circumvention, and that C-32, while including innovative solutions for the benefit of specific interests such as the print disabled, internet service providers, and mash-up video creators, departs from the tradition of maintaining maximum independence and safeguarding consumer interests on the issue of anti-circumvention measures.

Update: my chapter is now available online here.
Update 2: my Op-ed based on the chapter has been published in the Hill Times (to subscribers/for purchase).

Tuesday, September 21, 2010

Stevie Wonder on Declaration of Freedom

In what is possibly the coolest thing to have happened at WIPO ever, Stevie Wonder calls on WIPO to fix copyright and enact "a declaration of freedom to secure to every single human being the opportunity to live the freedom knowing that they have accessibility to information throughout the world."

Performing for the WIPO audience, Wonder noted, "The reason that you know this song is because it's accessible to you. You can read the words; maybe sang this song; maybe danced to this song." "I'd like to see a declaration of freedom for those who are blind or visually impaired - not just those who are blind - those who are deaf, those who are paraplegic, quadriplegic or other."

Promising a celebratory concert at WIPO next year if this is achieved, Wonder left off with the words, "It's on you - do what you gotta do."

See IPW.

Stevie Wonder on Copyright from Intellectual Property Watch on Vimeo.

Stevie Wonder At WIPO General Assemblies from Intellectual Property Watch on Vimeo.

Thursday, September 16, 2010

WIPO and the ACTA Threat

My paper, WIPO and the ACTA Threat, has been published in the Program on Information Justice and Intellectual Property at the Washington College of Law. Please send any comments to

The new Anti-Counterfeiting Trade Agreement (ACTA) has been seen as a potentially existential threat to the existing World Intellectual Property Organization (WIPO) – as a new plurilateral institution that could replace the older multilateral organization. The ACTA threat to WIPO has a number of predecessors. WIPO’s centrality to international intellectual property norm-setting encountered its first major challenge in 1952 when the Universal Copyright Convention was established under UNESCO. It encountered a second major challenge with the establishment of the Agreement on Trade-Related Aspects of Intellectual Property (the TRIPs Agreement). The ACTA challenge thus potentially represents a third instance where a major competing norm-setting institution has challenged WIPO. In this paper I review past instances where WIPO has been challenged by an outside norm-setting institution and the responses taken to those challenges. Second, I outline the main proposals for an ACTA institution. Third, drawing on the past instances, I outline the various possible forms that an ACTA-WIPO relationship could take, and various strategies that WIPO could use to maintain its role in the international intellectual property system. Finally, I outline a number of public policy concerns that the institutional proposals for ACTA pose.

Monday, September 6, 2010

WIPO transparency threatened

WIPO held its annual Program and Budget Committee meeting last week. The Committee discussed ways that it might better make its meetings and documents available in multiple languages. WIPO operates in Arabic, Chinese, English, French, Russian and Spanish, and also Portuguese under specific conditions. In examining ways to make translation costs more affordable, one of the proposals is to stop producing verbatim reports of its meetings, producing instead only a summary report:
A third measure to reduce translation workload, already adopted by the United Nations Office at Geneva (UNOG) and WHO, would consist in replacing the current costly practice of preparing verbatim reports with summary records to be generally limited to approximately 30 pages (compared with 100 to 250 pages for verbatim reports). They would be limited to statements of fact (agenda, participants) and a record of decisions and recommendations. The Secretariat estimates that this measure would enable the overall volume of reports to be reduced by some 70 percent or around 1360 pages per year.
Instead, a recording system would replace the verbatim reports:
In the current biennium, a new digital conference room recording system will replace the present analog system. Upon final installation and testing of the new system, changes to the reporting method may be proposed by the Secretariat that will include the digital recording of proceedings to replace the current practice of preparing verbatim reports. This same system could be extended to the Assemblies of the Member States of WIPO for which the elimination of verbatim reporting combined with electronic records of interventions could result in considerable savings that could be further used towards extended language coverage.
Unless the digital recordings are made publicly available, as the verbatim reports of meetings currently are, WIPO is in danger of sacrificing a great deal the transparency from which it derives its legitimacy as against other forums. Without proper records of meetings, scholars, NGOs, and those unable to attend the meetings will be unable to properly follow WIPO activities.

Multilingualism is extremely important for WIPO and all international organizations, and is a challenge for all. WIPO is very good at finding money for all kinds of projects. There is no reason for transparency to be sacrificed in the name of multilingualism; both transparency and multilingualism are core features of international legitimacy.

Wednesday, August 25, 2010

The Net and Other Election Issues

There are a few issues that have become an election issue in Australia and have not been as high on the Canadian election agenda. One is the Internet. Australians are rightly concerned about the next generation of high speed Internet.
Other issues on the Australian agenda not seen in Canada:
shooting (ok... so a few common issues)
boiling the billy (?)
...and of course, the deadly flying foxes.

Thursday, August 19, 2010

Do I Sound Illegal to You?

Sounding Out! has an interesting post about how law (Arizona's anti-illegal-immigration law) and sound (sonic profiling) can be used to target undocumented workers and make them subject to deportation, police harassment, and criminalization - and how remixers and other performers are using sound to fight back.

Turning tide? E-book text-to-speech exception

The Daily Finance has an article on how the Library of Congress' recent ruling allows the circumvention of digital locks in order to use ebook text-to-speech features. Kevin Smith thinks the latest rulemaking represents a turning of the tide in US copyright policy.

Tuesday, August 17, 2010

The Future of the University

The mandate of P2PU - the peer-to-peer university - is "Learning for everyone, by everyone, about almost anything". Going beyond open courseware, P2PU creates actual classes - online communities - that students can join to take the courses. Course designers can participate in an online course about designing courses!
Does P2PU offer formal credits? Not yet.

Thursday, August 5, 2010

Friday, May 7, 2010

E-books and the new copyright bill

As the Canadian government prepares to unveil its new "anti-consumer" copyright bill, there is one relatively new problem that should be considered: e-books. Consumers want to be able to use their e-books over the years as technology changes. They want to use the e-books they buy today for their Kindle or their Sony E-Reader on the next generation of e-readers. Many ebooks are not only in today's format, but they are also locked by DRM to their current e-reader units. This is usually not advertised when the e-books are sold, so many consumers will be in for a surprise when they try to replace their e-readers in a few years.

The new copyright bill could potentially make it illegal to break those digital locks in the future when it's time to transfer those books onto future devices. The new bill is said to be based on bill C-61, which made the ability to format-shift your own content (froim an old format to a new format) illegal if the content had DRM on it, like most ebooks sold today do.

For many books, and especially academic ones, the price for the ebook is the same (sometimes hundreds of dollars) as it was for the print edition. Canadians shouldn't live in a world of expiring and disappearing books. Consumers should have the right to use books the way they're used to doing - i.e. to buy them and have them for life, and to use them for years to come on future generations of devices.

Tuesday, May 4, 2010

Fair Use contributes to US economy

Wired reports on a new study that sees fair use as contributing "$4.7 trillion in revenue and $2.2 trillion in value added" to the US economy, "roughly one-sixth the total gross domestic product of the United States."

Concordia goes open access

Congratulations to Concordia University for adopting a policy that will "encourage all of its faculty and students to make their peer-reviewed research and creative output freely accessible via the internet." This shows Concordia's laudable desire to "make publicly-funded research available to all rather than just the minority able to afford the rapidly rising subscription costs of scholarly databases, books and journals."

Wednesday, March 31, 2010

CanCon Online

The Globe and Mail today has an interesting piece on the House of Commons Committee on Canadian Heritage's current study on new media. Google, in response to the study's launch, has let it be known that it sees no role for online Canadian content rules.
Canadian content regulation could apply online in a few ways:
  1. Internet radio and television: whereas the CRTC does not currently regulate online radio and television, they could: at a minimum, they could require traditional Canadian broadcasters to reflect their content quotas in their live online feeds; at a maximum they could require a broader swath of online broadcasters to respect some quota for online video and radio.
  2. Online store displays: many online stores have a front portal that allows much less space for display than does a traditional store; the front page of an e-book store, or the front page of an online music store, allows for the display of a relatively small number of books. These have a huge marketing advantage. Some may or may not have pre-programmed searches or search capabilities that show or help the user to find or prioritize Canadian content.
  3. Canadian commercial initiatives: regulation could encourage commercial initiatives online that showcase Canadian content through, for example, grants, training and networking, or tax incentives.
  4. Search displays: Google, for example, does not seem to have a category of Canadian books in its Google book search. Google's search engine also makes it very difficult to find specific Canadian content, such as Parliamentary records, that it does occasionally have in its database. The government could spur such features along thorough encouraging partnerships, for example, that would see Canadian organizations work with Google to make such features available.
  5. Canadian digitization initiatives: Regulation could very much encourage the digitization of vast amounts of Canadian materials, including the Parliamentary records, archival records, music, and more. The IMSLP is a Canadian initiative to make public domain music scores available online. The project has a competitive advantage over sites hosted elsewhere; it can make more public domain music available because Canada has held fast to its relatively shorter term of copyright protection of life + 50 years. This is an excellent example of how Canadian law can improve online access through regulation - not only to Canadian content, but to all kinds of content.
I think the Heritage Committee should start with 5 (quite important) and work its way down to 1 (not so important?) when it considers ways to encourage Canadian content online.

Monday, March 29, 2010

ACTA won't replace WIPO

Michael Geist has a very interesting post about the possibility of ACTA replacing WIPO, replicating certain WIPO functions, and slowing or undermining the WIPO Development Agenda. Although ACTA could certainly become the centre of action in IP treaty-making and may take on some functions that are similar to what WIPO now does, I don't believe it will replace WIPO or undermine the Development Agenda. Here's why:
  1. WIPO has historically been faced on various occasions with outside IP treaty-making organizations. In 1952 it faced the competing Universal Copyright Convention, and in the 1990s it faced the World Trade Organization's TRIPs Agreement. In both cases, it came to arrangements with the external organizations that secured its own role and made the treaty-making processes compatible between the two organizations. Although WIPO's ability to conclude treaties may be somewhat weakened by these outsiders, WIPO remains a strong and growing international organization whose expertise and capacity to work on IP issues is unrivaled by any other.
  2. It seems as though the ACTA secretariat, as proposed, would be institutionally very small compared to WIPO.
  3. The possibility remains that the ACTA secretariat will actually be housed at WIPO.
  4. The Development Agenda is not working at cross-purposes with ACTA. The Development Agenda has morphed into a set of thematic projects that pose very little threat to the interests of developed countries. Some are, indeed, just what developed countries have been asking for. Projects will provide all kinds of resources to IP offices and infrastructure in developing and least developed countries, will put in place seminars and training programs - even regional IP academies, and create opportunities for IP organizations worldwide to partner with IP organizations in developing countries. It's not inconceivable that the Development Agenda projects could be used to eventually help bring developing countries on board with ACTA.

Saturday, February 27, 2010

Canadian implementation of copyright treaties

I posted recently on the possibility that ACTA could prolong the process of Canadian copyright reform, and about the average period of time, historically, that it has taken to reform Canadian copyright law. If we look at specific examples of efforts, on the part of Canada, to implement international copyright treaties, there are a few examples:

The Berne Convention, first implementation: 38 years

Canada was signed on to the original Berne Convention, which is still the cornerstone international copyright treaty today, by the British in 1886. However, it took Canada 38 years to implement the Berne Convention. After being brought on board by the British Imperial government, Canada decided the Berne Convention didn't fit in the North American context. It was viewed as a European treaty; the Americans weren't part of it. It therefore wasn't until 1924 that Canada finally implemented what by then was the 1908 revision of the Berne Convention.

The 1928 revision of the Berne Convention: 3 years.
Canada implemented the 1928 revision of the Berne Convention in short order, in 1931, granting moral rights and broadcast rights in copyright works.

The 1952 Universal Copyright Convention: 10 years.
Canada took 10 years to ratify the Universal Copyright Convention, which it did in 1962. It took 10 years because Canada couldn't decide whether or how to change Canadian law in order to implement the convention. After waffling about for 10 years on a possible copyright overhaul, Canada decided that no change to the actual law was necessary in order to meet the standards of the UCC, so that made the process, in the end, relatively quick.

The 1971 Revision of the Berne Convention: 22 years.
Canada implemented the 1971 (current) revision of the Berne Convention (which it had not originally signed) in 1993 in order to comply with NAFTA. Canada then formally acceded to the convention in 1998.

On average, that's 18 years. Implementation takes place more quickly if either no reform to domestic law is required or if the changes required are relatively uncontroversial. If however, the changes required are controversial, or if a significant overhaul of the copyright act is contemplated - as in the current case of contemplated copyright reform - implementation in Canada can take much longer.

Friday, February 26, 2010

Average length of copyright reform

I noted recently that ACTA could actually slow down copyright reform in Canada. That made me wonder, how long does copyright reform in Canada take, on average?

Reform 1: 36 years . Canada's first copyright act was put in place in 1868, just after Confederation. Attempted overhauls began with bills introduced in 1888 and 1889, but these failed or were blocked by the British. Only minor revisions were made until a completely new act came into effect in 1924.

Reform 2: 34 years. Canada began to contemplate copyright reform again in 1954, when it created a Royal Commission to investigate copyright and other forms of intellectual property. This was followed by a major study by the Economic Council of Canada that came out in 1971. All of this studying didn't amount to a major copyright reform until another round of consultations that culminated in the reform of 1988.

Reform 3: 9 years. The next phase of Canadian copyright reform took place in record time, and was done in 1997.

On average, that's 26 years.

Reform 4: 13 years and counting. If history is any guide, Canadians should be expecting a new copyright act somewhere around 2023.

ACTA & Copyright Reform

While Canadian delegations work with other countries to negotiate ACTA, Canadians await the next round of attempted copyright reform. The last two copyright bills, C-60 and C-61 died with changes of government. While parts of the first Liberal bill was seen to some extent to be acceptable, elements of the Conservative C-61 bill were fiercely opposed.

From recent reports it seems as though ACTA would block Canada into a corner on certain aspects of copyright reform, undermining the Canadian notice-and-notice regime for ISP liability and Canadian proposals for DRM circumvention laws, for example.

What will be the effect of ACTA on Canadian copyright reform?

The effect of ACTA on Canadian copyright reform depends on how the negotiations go. The goal of the Canadian delegation negotiating ACTA will likely be to preserve policy space for Canadian copyright lawmaking, and to negotiate an ACTA that will enable a Canadian copyright bill that is acceptable to Canadians and passable in Canadian Parliament. If the delegation succeeds, and a flexible ACTA that Canadians are comfortable with is the outcome, then we have little to worry about. This, for the moment, seems unlikely.

If the delegation does not succeed, and the ACTA that is finally agreed by negotiating parties contains elements that seem unsavory from the Canadian perspective or that would cut off policy options that the Canadian government wants to preserve, then Canada has the option to refrain from signing the treaty. This has happened in the past. When the 1967 revision of the Berne Convention was signed, Canada was in the middle of a copyright policy overhaul. Because of this, after participating in the negotiations, Canada did not sign the revision, which never came into effect anyway. Similarly, Canada negotiated actively but did not sign the 1971 revision of the Berne Convention - which remains the current revision of the treaty - , and avoided acceding to that revision of the convention until 1998. Canada also negotiated actively but did not sign the 1971 revision of the Universal Copyright Convention. Again, this was due to the desire, on the part of the Canadian government, to allow Canadian policy options to remain open for the domestic decision-making process to take place.

If Canada signs an ACTA that contains controversial elements from the Canadian perspective, things could go one of two ways. Policymakers and interest groups may accept that the field of policy options has narrowed, that Canada has committed to certain policies, the debate around copyright reform may be encompassed within new terms, and several options that were once controversial will have been pre-decided via the international process. Effectively, domestic policy-making procedures will have been circumvented, and any new Canadian copyright act will fall within the parameters set by ACTA, perhaps passing more easily because some of the controversial elements have been taken out of the debate.

Alternately, copyright reform could become even more difficult. Those groups who are in favour of the policy options contained within ACTA will have a stronger argument as to why Canada should include those elements in any new act, while opponents will criticize the government for having short-circuited the domestic process. They will argue that Canada should not implement ACTA. At the same time, the Canadian government will be under more pressure from other parties to the ACTA to implement. This situation could lead to an even longer period of indecision and difficulty in Canadian copyright reform.

update: see Blayne Haggart's post on this same topic
update 2: see Blayne Haggart's post on how ACTA could slow copyright reform in Mexico

Thursday, February 25, 2010

E-books: A Checklist for Readers

The EFF has published an excellent checklist of questions to ask if you are considering buying an e-book or e-reader. It seems to me that many of the answers to these questions are, for the moment, somewhat depressing. This makes it all the more important that such questions should be asked.

Wednesday, February 24, 2010

Canada: Stronger in 22 Ways

Copyright lawyer Howard Knopf spoke to Search Engine about 21 ways (+1) that Canadian copyright law is stronger and more restrictive than American law. Canada suffers much abuse from the US - especially where American-dominated IP lobby groups are running the show, as they so often are - and even, unfortunately, in respectable Canadian publications like the Globe and Mail. Canada's representatives and Canadian commentators would do well to memorize these 22 points, rather than be caught speechless the next time Americans choose the term 'backwater' to refer to their closest trading partner.
Listen to Knopf here.

Thursday, February 18, 2010

Google Book Settlement and Canada

Howard Knopf has made some comments on the Google Book Settlement and has made note of several questions that Canadians should be asking. He points out that "most of the bells and whistles of the Google Books database will presumably not be available in Canada with respect to most of the database." Although Canadian copyright owners are included in the settlement class, and thus copyright owners could benefit from the proceeds of the settlement, none of the proposed benefits to users, such as institutional access to the database in Canadian libraries, free terminals to access the database in public libraries, or individual subscriptions, will be available to Canadians. Google will confine the services proposed under the settlement to the United States, where American copyright law applies. Canadians will be left viewing snippets of what American users can access fully.
For those interested in reading more, see Jonathan Band's article; especially page 264 on the service provision outside the United States.

Sunday, February 14, 2010

E is for expensive

An article in the New York Times on Thursday notes that the prices of ebooks are slated to go up. Customers are outraged. One customer is quoted as saying "$14.82 for the Kindle version is unbelievable." Try $315:
And those are DRM versions that may or may not be usable on your next device.

Monday, February 8, 2010

E is for evil

E-books aren't evil necessarily. They can be a convenient way to read, and digital books will make an enormous wealth of literature and knowledge available. But there are some important downsides. Here's a summary.

There are a number of great benefits to e-books, especially from an academic perspective:
  • Access. E-books provide easy and instant access to huge numbers of books - especially books in the public domain. Whereas in the past you had to hunt for these, or, in more recent years, read them online, now they are portable on e-readers, which make them convenient and easy to read and carry around.
  • Markability. Some e-readers give you the ability to write in the book without feeling guilty. This ability is really important for concentration, comprehension, and memory.
  • Read-aloud. Some e-readers will read a book aloud. This is great if you prefer to listen to your books, and especially for the visually or reading-impaired.
  • Storage. For travelers especially, e-readers allow you to carry around a whole bunch of books, easily. They free up shelf space. This is most important for libraries; e-books will allow libraries to offer many more books to their clients without straining storage space.
  • Library books. Many public libraries now offer e-books that you can download online. They are easy to sign out without visiting the library, and easy to return: they just become disabled after the loan period ends.
  • Competition. E-books offer some competition to regular books, which hopefully will have a positive effect on prices. There seems to be relatively healthy competition between online stores selling e-books, with the exception of cases of vertical tying, as I'll discuss further below.
  • Newspapers and magazines. Many newspapers and magazines are available for the Kindle, while some - though fewer - are available at the Sony e-book store. E-subscriptions could create a new and much-needed revenue stream for newspapers and magazines - and, it's a very convenient way to receive them.
  • Royalties. E-book vendors such as Amazon give a far greater percentage of royalties to publishers and authors than what authors recieve on print sales; Amazon just announced that it will offer, on certain conditions, almost 70% of the e-book sale price in royalties to its authors and publishers.
  • Circumventing censorship. E-books can be made available even where print versions are banned. See this post by James Turner.
However, there are also a number of downsides:
  • Online E-books. Although many public libraries now offer e-books online, academic libraries seem to be slower to get on board. Unfortunately, many academic libraries have adopted only a type of e-books that can't be downloaded, but that can only be read using a browser in a special web portal. These, I have found, are almost useless in an academic setting: they can't be underlined, note-taking features are extremely limited, and printing is limited to a very few pages a day - so the articles can't be brought to class. HotBook agrees that this type of e-book is a disaster. So have my students.
  • DRM. Digital Rights Management can be a huge pain for purchasers of e-books, without, it seems, being effective in preventing copyright infringement. DRM seems more effective as an anti-competitive practice than as a mechanism to prevent unauthorized copying; plenty of books are available through unauthorized sources online. Nevertheless, DRM puts up all kinds of barriers to access and convenience. With many DRM-protected e-books, you can't loan your book to a friend. Your e-book becomes tethered to your device - and possibly only certain devices so that, although you may have the capability of reading e-books on both your e-reader and your phone, the book you bought may be restricted to your e-reader device, unplayable on your phone. When you switch to a new device in a few years, you may not be able to take your books with you. Also, as happened to me recently, DRM can be glitchy. Some of my DRM e-books recently became disabled due to a bug in the library-book lending system. Cases like this are very frustrating. These factors could turn many off of e-books.
  • Open Source Software. Many e-books are non-DRM and can be managed using open-source software. Not only is this software free -- it can also be continuously improved by the Open Source Software community. However, DRM e-books cannot be legally used in Open Source Software, meaning that you can end up stuck using whatever software your vendor happens to provide.
  • Vertical tying. Many books are sold that only work on particular devices, preventing owners of Sony e-readers from reading e-books bought at Amazon, and preventing anyone without a Sony e-reader from buying from the Sony e-book store, for example. Here, DRM is used to force customers to buy particular devices and to reduce competition between e-book vendors.
  • Disappearing e-books. Although it's great to be able to access e-books for free with ease from the library, the prospect of disappearing books seems to run counter to the technological possibilities and potential of the technology.
  • Copyright term. The technological expansion of access to books coincides with the extension of copyright terms (the length of time that copyright applies), countering that expansion by blocking off access to books or making them only commercially available.
  • Software limitations. The e-readers and software available now seem very rudimentary: note-taking functions are extremely limited; cut-and-paste functions are often disabled or laden down with copyright notices; and a lot of the software is simple, clunky and buggy.
  • Format. E-books look OK, but they're not exactly beautiful. E-readers don't display colour at this point, and formatting can be a little wonky. Some e-books and documents can be hard to read, even for those with good vision. Limited formatting capabilities may limit the usefulness of e-readers for reading magazines and newspapers. The Apple iTablet offers itself as one exception.
  • Accessibility. Universities have been working with companies to ensure that e-readers are accessible to those who are visually impaired. Although the read-aloud function available on some e-readers is a great step forward, it has been impossible for those who are visually impaired to properly navigate the menus and software functions of the device. Hopefully this will improve soon.
  • Price of books. Many ebooks are very expensive - especially academic books. Taylor & Francis offers many of its books at the ridiculous price of $100-$200. When standards and technology are still in flux, and people change gadgets every two years or so, e-books that you purchase now may only be good for a year or two, either because they are tethered by DRM to your old device, or because standards have changed. Most people can't afford to spend that kind of money on a book that could expire or become incompatible in a year or two. It is especially ironic that academic books should be so expensive, when most academics neither need nor expect to make any significant money through publishing.
  • Price of technology. E-readers are expensive. To large groups of people around the world, they are unaffordable. Mobile phones equipped with e-reading software are one less expensive option. See this post by James Turner.
  • Jobs. E-books could change the employment landscape of the newspaper industry and the publishing industry as a whole - affecting especially those implicated in production and delivery. However, in the case of newspapers, this shift may have already taken place as a result of the online availability of news. In the case of libraries , if the provision of e-books is outsourced, as it now appears to be, library staffing - in cataloging and circulation especially, could change. This is to say nothing of the impact on brick-and-mortar bookstores. The current feeling seems to be that e-books will not replace regular books. Nevertheless, there will very likely be an impact.
  • Environment. Although e-books save paper, the e-reader is yet another consumer electronic device that will be disposed of, create energy costs, and damage the environment.
  • Troubleshooting. Who knew that you'd ever have to call IT to troubleshoot a book?
Let me know what I've missed...

Wednesday, January 13, 2010

World Fair Use Day-International aspects

Events were held in Washington DC this week to celebrate World Fair Use Day. Canadian filmmaker Brett Gaylor noted that the name of the day is a bit of a misnomer, since only the US and Israel have "fair use" provisions in their law; the Canadian counterpart, and the principle in many countries around the world, is called 'fair dealing'. Michael Geist makes an important note on this today. Many of the discussions at the Washington events were focused on fair use in the US, but international aspects arose on a few occasions.

Panelists at a discussion on ACTA Monday night noted the importance of exporting not only protections for copyright holders, but also the exceptions and limitations to copyright that ensure copyright law encourages innovation, that it is balanced, that it reflects how people want and need to use works, and that it is respected. They expressed concern that ACTA, if it focuses only on ratcheting up the rights of copyright holders without focusing also on exceptions and limitations, might set a narrow path going forward that would be detrimental to not only balance in copyright around the world, but also to the current and future flexibility of American law. See Rebecca Tushnet's' blog for more of the discussion.

At a lunchtime discussion with Peter Jaszi and Anthony Falzone, I asked the question: should fair use be internationalized, and if so how? The discussion was blogged here ("Sarah Bannerman from GWU"). The panelists gave a thoughtful response, expressing caution about exporting a US-based approach and fears that the harmonization process might actually impose limits on the flexibilities and limitations that countries can include in their law. However, they also noted, as did the panelists Monday night, the importance of including balance and room for limitations and exceptions in any harmonization process.