Tag Archives: copyright

Billions lost to patent trolls; US White House asks for comments on intellectual property (IP) enforcement; and more on IP

It becomes clear after a time that science, intellectual property (patents, copyright, and trademarks), and business interests are intimately linked which is why I include items on the topic of intellectual property (where I am developing some strong opinions). As for business topics, I am more neutral as my understanding of business is quite limited.

All of this is to explain why I’m taking ‘another kick at the IP (intellectual property) can’. I’m going to start with patents and move on to copyright.

A June 26, 2012 news item from BBC News online highlights the costs associated with patent trolls,

The direct cost of actions taken by so-called “patent trolls” totalled $29bn (£18.5bn) in the US in 2011, according to a study by Boston University.

It analysed the effect of intellectual rights claims made by organisations that own and license patents without producing related goods of their own.

Such bodies say they help spur on innovation by ensuring inventors are compensated for their creations.

But the study’s authors said society lost more than it gained.

A June 27, 2012 commentary by Mike Masnick for Techdirt provides more detail,

The report then goes further to try to figure out whether the trolls are actually benefiting innovation and getting more money to inventors, as the trolls and their supporters like to claim. Unfortunately, the research shows quite a different story — with very little of the money actually flowing back to either inventors or actual innovation. In other words, we’re talking about a pretty massive economic dead-weight loss here. Money flowing from actual innovators and creators… to lawyers, basically. Innovators grow the economy. Lawyers do not.

Masnick’s commentary includes a table from the report showing how the costs have increased since 2005 (approximately $6B) to 2011 (approximately $29B).

The researchers are James E. Besson and Michael J. Meurer at Boston University and the open access report, The Direct Costs from NPE [non-practicing entities] Disputes, is available from the Social Science Research Network.

Interestingly the same day the study from Boston University was released was the same day that the US White House’s Intellectual Property Enforcement Coordinator, Victoria Espinel, announced she wanted comments about US IP enforcement efforts (from Espinel’s June 25, 2012 blog posting),

Today my office is starting the process of gathering input for the Administration’s new strategy for intellectual property enforcement. The overarching objective of the Strategy is to improve the effectiveness of the U.S. Government’s efforts to protect our intellectual property here and overseas. I want to make sure as many people as possible are aware that we are working on this so we can get the very best thoughts and recommendations possible. Part of the process of gathering public input is to publish a “Federal Register Notice” where we formally ask the public to give us their ideas. We will read all of your submissions – and we will make them publicly available so everyone can see them.

You can do so by following this link to Regulations.gov where you will find more details for submitting your strategy recommendations beginning today.

I believe that essential to the development of an effective enforcement strategy, is ensuring that any approaches that are considered to be particularly effective as well as any concerns with the present approach to intellectual property enforcement are understood by policymakers. [emphasis Mike Masnick of Techdirt] Recommendations may include, but need not be limited to: legislation, regulation, guidance, executive order, Presidential memoranda, or other executive action, including, but not limited to, changes to agency policies, practices or methods.

Beyond recommendations for government action as part of the next Strategy, we are looking for information on and recommendations for combating emerging or future threats to American innovation and economic competitiveness posed by violations of intellectual property rights. Additionally, it would be useful to the development of the Strategy to receive submissions from the public identifying threats to public health and safety posed by intellectual property infringement, [emphasis mine] in the U.S. and internationally as well as information relating to the costs to the U.S. economy resulting from infringement of intellectual property rights.

Aside: That bit about public health and safety being endangered by infringement is going to have to be explained to me. Moving along, Mike Masnick’s June 26, 2012 commentary about this matter on Techdirt includes an exhortation to participate,

I will be submitting my own thoughts, which I will also publish here, but for those thinking about what to say, I would focus on this sentence above [emphasized in the previous excerpt from the Espinel posting "I believe that essential ..."]. Historically, many of the government’s approaches have not been at all effective, and have created a number of significant problems — most of which have been ignored by the government (either willfully or through ignorance). This really is a chance to provide examples of why the current policy is not effective (and will never be effective if it keeps on the current path) as well as the “concerns” with the current approach, such as the criminalization of expressive behavior and the outright censorship of media publications.

Meanwhile, we here in Canada are focused on copyright.

Michael Geist (the Canadian copyright guru) notes in his June 26, 2012 posting (Note: I have removed some links.),

Brian Brett, the former Chair of the Writers’ Union of Canada and an award winning author, has issued an explosive public letter that “breaks the ‘cone of silence’ that has obscured for too long some of the ugly practices of Access Copyright.”

You can get an idea why Geist described the letter as “explosive” from this excerpt (from the June 26, 2012 commentary in the Georgia Straight),

As a former Chair of the Writers’ Union of Canada (I’ve been a member more than thirty years), I have been asked to sign a letter to educational institutions supporting Access Copyright’s efforts to obtain collective licensing agreements with those institutions. I will not sign. I believe the time has come for action, not words. …

For the first time in history it has become too complex and expensive to quote the music of our era for many young writers. Writers are being charged exorbitantly for quoting other writers in their poems, fictions, and essays; yet are losing their own rights and income. Meanwhile, the Canadian Government has made legislation favouring educational institutions and media empires (at the expense of creators) in the name of supporting our nation’s culture.

As we earnestly discuss these issues, but do nothing to protect ourselves, we are seeing the rights of creators to fair compensation eroded to the point of where many are at risk of receiving nothing for their work.

Access Copyright, created specifically to collect fair compensation for creators, is central to this discussion. While I believe that educational institutions must pay writers, and will eventually pay them, it’s also necessary to call out the ugly regime of Access Copyright, which is collecting our copyright income. …

6. Access Copyright rewards textbook companies who demand that authors relinquish their copyright to their work by paying them both the publisher and creator copyright payment. Academic authors often consider textbook authorship crucial to tenure. Thus academic authors are open to being pressured by publishers out of their copyright. In effect Access Copyright is encouraging textbook publishers to undermine copyright by demanding a creators’ total copyright, and doubling the publisher’s payment for this ugly practice.

So, the academics who write those science and math (and other subject) texts are being pressured by financially motivated publishers to give up copyright while they are also being being pressured to publish for the well-being of their careers. Nicely done Access Copyright! (sarcasm)

While I suspect that I don’t agree with Betts on some issues, I do believe that content creators should receive some financial benefit from their work.

On a more hopeful note, the recent passage of Bill C-11 (Copyright) has some very good things indeed (from the June 21, 2012 commentary by Leigh Beadon on Techdirt [Note: I have removed a link.]),

Michael Geist has an excellent summary of C-11 with a comparison to previous phases of copyright law in Canada. The victories for smarter copyright law in C-11 sound almost like fantasy when compared to the American copyright debate. They include:

  • New fair dealing provisions (our version of fair use) to cover educational uses, plus parody and satire
  • New backup, format-shifting and time-shifting allowances that remove previous restrictions on networked DVRs and internet TV services (similar to those that have suffered in American courts)
  • Explicit copyright exceptions for “user-generated content”, aimed at protecting non-commercial fan-art and remixes
  • A bunch of explicit exceptions for schools, such as the right to stage public performances
  • A notice-and-notice system, not a notice-and-takedown system
  • A $5,000 cap on statutory damages for all non-commercial infringement

Sadly, there is the issue of the ‘digital lock’ provision which was rammed through Parliament despite almost universal condemnation from Canadians of all walks of life. Geist provides much more detail about this issue than I can. In fact, he offers two postings outlining both Canada’s Justice Dept. discussion about the digital lock provisions (June 25, 2012 posting) and the Competition Bureau’s (June 26, 2012 posting) and possible issues with constitutional rights.

On a much happier note for me personally is a recent Federal Court of Canada ruling about linking and posting, from the June 25, 2012 posting on the Michael Geist blog (Note: I have removed links.),

The Federal Court of Canada has issued an important decision involving copyright and posting content online. The case involves a lawsuit launched by Richard Warman and the National Post against Mark and Constance Fournier, who run the FreeDominion website. Warman and the National Post sued the site over the appearance of two articles and an inline link to photograph that appeared on the forum. The court dismissed all three claims.

While the first claim (Warman’s article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long.  The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a “substantial part” of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum.  The decision then includes an analysis of the six factor test and concludes that the use was fair.

So I can link to and quote from Canadian publications in peace, for now. (Great news!)

There is some additional analysis of the ruling in a (h/t) June 26, 2012 posting by Leigh Beadon on the Techdirt website.

No grand thoughts here. I just find this very fluid situation with regard to intellectual property important as I believe the outcomes will affect us all in many ways, including how we practice science.

David Koepsell: nanotechnology brings the intellectual property regime to an end

David Koepsell, author of Innovation and Nanotechnology: Converging Technologies and the End of Intellectual Property, is a philosopher, attorney, and educator who teaches at the Delft University of Technology (the Netherlands). He is also author of Who Owns You? The Corporate Gold Rush to Patent Your Genes.

In a Feb. 27, 2012 interview with Dr. J (James Hughes, executive director of the Institute of Ethics for Emerging Technologies [IEET] and producer/interviewer for Changesurfer radio), Koepsell discussed his book about nanotechnology and the disappearance of intellectual property regimes in a 28 min. 51 sec. podcast.

Koepsell and Dr. J provided a good description of converging technologies so I’m going to plunge in without much introduction.

I wasn’t expecting to hear about Marxism and the means of production but there it was, mentioned in the context of a near future society where manufacturing can be done by anyone, anywhere by means of molecular manufacturing or by means of 3D fabrication, or etc. The notion is that production will be democratized as will the intellectual property regime. There were several mentions of the state (government) no longer having control in the future over intellectual property, specifically patents and copyrights, and some discussion of companies that guard their intellectual property jealously. (I have commented on the intellectual property topic, most recently,  in my Patents as weapons and obstacles posting in October 2011. Koepsell is mentioned in this posting.)

Both Koepsell and the interviewer (Dr. J) mentioned the possibility of widespread economic difficulty as jobs disappear due to the disappearance of manufacturing and other associated jobs as people can produce their own goods (much like you can with Star Trek’s replicators). But it did seem they mentioned job loss somewhat blithely, secure in their own careers as academics who as a group are not known for their manufacturing prowess or, for that matter, the production of any goods whatsoever.

It seems to me this future bears a remarkable resemblance to the past, where people had to create their own products by raising their own food, spinning, weaving, and sewing their own clothes, etc. The Industrial Revolution changed all that and turned most folks into ‘wage slaves’. As I recall, that’s from Marx and it’s a description of a loss of personal agency/autonomy, i.e., being a slave to wages (no longer producing your own food, clothing, etc.) and not a reference to poor wages as many believe (including me until I got a somewhat snotty professor for one of my courses).

The podcast is definitely worth your time if you don’t mind the references to Marx (there aren’t many) as the ideas are provocative even if you don’t agree. Koepsell describes how his interest in this area was awakened (he wrote about software, which is both copyrightable as writing and patentable as a machine).

The book is available as a free download or you can purchase it here. Here’s a brief excerpt from the book’s introduction (I removed a citation number),

Science demands unfettered inquiry into the workings of nature, and replaces the confidence previously demanded over rote knowledge with a practiced skepticism, and ongoing investigation. With the rise of the age of science came the need to develop new means of treating information. Scientific investigations conducted by ‘natural philosophers’ could only be conducted in full view, out in the open, with results published in meetings of scientific societies and their journals. Supplanting secret-keeping and obscurantism, the full sunlight of public and peer scrutiny could begin to continually cleanse false assumptions and beliefs, and help to perfect theories about the workings of the world. Science demanded disclosure, where trades and arts often encouraged secrets. And so as natural philosophers began to disseminate the results of their investigations into nature, new forms of trade, art, and industry began to emerge, as well as the demand for new means of protection in the absence of secrecy. Thus, as the scientific age was dawning, and helping to fuel a new technological revolution, modern forms of IP [intellectual property] protection such as patents and copyrights emerged as states sought to encourage the development of the aesthetic and useful arts. By granting to authors and inventors a monopoly over the practice of their art, as long as they brought forth new and useful inventions (or for artistic works, as long as they were new), nation states helped to attract productive and inventive artisans and trades into their borders. These forms of state monopoly also enabled further centralization of trades and industries, as technologies now could become immune from the possibility of ‘reverse-engineering’ and competitors could be kept at bay by the force of law. This sort of state-sanctioned centralization and monopoly helped build the industrial revolution (by the account of many historians and economists, although this assumption has lately been challenged) as investors now could commodify new technologies free from the threat of direct competition, secure in the safe harbor of a state-supported monopoly over the practice of a useful art for a period of time.

In many ways, traditional IP [intellectual property] was (and is) deemed vital to the development of large industries and their infrastructures, and to the centralized, assembly-line factory mode of production that dominated the twentieth century. With the benefit of a state-sanctioned monopoly, industry could build sufficient infrastructure to dominate a market with a new technology for the duration of a patent. This confidence assured investors that there would be some period of return on the investment in which other potential competitors are held at bay, at least from practicing the art as claimed in the patent. Factories could be built, supply chains developed, and a market captured and profited from, and prices will not be subject to the ruthless dictates of supply and demand. Rather, because of the luxury of a protected market during the period of protection, innovators can inflate prices to not only recoup the costs of investment, but also profit as handsomely as the captive market will allow.

For most of the twentieth century, IP allowed the concentration of industrial production into the familiar factory, assembly-line model. Even while the knowledge behind new innovation moved eventually into the public domain as patents lapsed, during the course of the term of patent protection, strictly monopolized manufacturing processes and their products could be heavily capitalized, and substantial profits realized, before a technique or technology lost its protection. But the modes and methods of manufacturing are now changing, and the necessity of infrastructural investment is also being altered by the emergence of new means of production, including what we’ll call ‘micromanufacturing’, which is a transitional technology on the way to true MNT (molecular nanotechnology), and is included in our discussions of ‘nanowares’. Essentially, assembly-lines and supply chains that supported the huge monopolistic market dominance models of the industrial revolution, well into the twentieth century, are becoming obsolete. If innovation and production can be linked together with modern and futuristic breakthroughs in micromanufacturing (in which small components can be fabricated and produced en mass, cheaply) and eventually molecular manufacturing (in which items are built on the spot, from the ground up, molecule by molecule), then we should consider whether the IP regimes that helped fuel the industrial revolution are still necessary, or even whether they were ever necessary at all. Do they promote new forms of innovation and production, or might they instead stifle potentially revolutionary changes in our manners of creation and distribution?

Amusingly, towards the end of the interview Dr. J plugs Koepsell’s ‘nanotechnology’ book by noting it’s available for free downloads then saying ‘we’re hoping you’ll buy it’ (at the publisher’s site).

Technology impact on creativity contest and the day radio killed music

I’ve been meaning to post this for a couple weeks now. There’s a video contest being run by the Insight Community (it’s affiliated with Techdirt a website where they publish information about copyright and other intellectual property issues, innovation, and more) with a $1000 US prize. From the Oct. 6 (?), 2011 posting,

A few weeks ago we wrote about a contest that NBC Universal was putting on, officially through New York City, asking students to make propaganda films, repeating NBC Universal/MPAA talking points about how copyright infringement was damaging NBC Universal.  In going through the fine print on the contest, we noted a few oddities.  First, you were not supposed to actually use facts or data and make a case.  Instead, the rules flat out told you what your position was.  You had to support the claim that “piracy costs jobs.”  Think the data shows that the real problem is legacy companies like NBC Universal not adapting to embrace new opportunities?  Too bad.

Even worse, the detailed fine print in the contest (which is pretty difficult to dig out), shows that if you win, you lose the copyright on your video.  Seriously.  It’s pretty amazing that a video contest promoting the supposed importance of copyright to creators involves requiring creators to give up their copyrights.  The prize?  A measly $500.

So we’re offering a competing contest, here via our Insight Community platform.  We’re asking people to create PSA videos showing the impact of technology on creativity today.  We’re not asking you to advocate any specific position at all, because unlike that other contest, we’re pretty secure in our beliefs and won’t melt like the wicked witch of the west should someone submit a PSA that challenges some of them.  We believe that the best videos will be both creative and have a factual basis.

Complete details and comments are available at the link I’ve provided. Note that the deadline is coming up soon.

Following on this theme of creativity being destroyed by new technologies and industry panics, there’s this from an Oct. 6, 2011 posting titled, Radio Is Killing Music, on Techdirt,

But what was a lot more entertaining about the article [in an August 1932 issue of Time Magazine] was the paragraph above this, in which it seemed to suggest that radio was absolutely killing music. Stop me if you’ve heard this before, but the refrain may be familiar:

Tin Pan Alley is sadly aware that Radio has virtually plugged up its oldtime outlets, sheet music and gramophone discs. The average music publisher used to get $175,000 a year from disc sales. He now gets about 10% of this. No longer does a song hit sell a million copies. The copious stream of music poured out by Radio puts a song quickly to death. The average song’s life has dwindled from 18 months to 90 days; composers are forced to turn out a dozen songs a year instead of the oldtime two or three.

Has there ever been a time, ever, in which the music industry’s established players weren’t complaining about the industry dying?

Nanotechnology regulatory framework for India

It looks like a wave of nanotechnology regulatory frameworks is developing. In mid-October 2010, India announced at a conference that a draft was in the works. From the news item on The Times of India website,

The two-day conference, titled Nanotechnology, materials and composites for frontier applications’, was inaugurated by Chavan at a city hotel. The conference is being hosted by the Bharati Vidyapeeth Deemed University, in association with the North Carolina A&T State University, Greensboro, US, Tuskegee University, Albama, US, and the Centre for Materials for Electronics Technology and the Department of Information Technology, Government of India.

Chavan said, “The nanotechnology field is very exciting, and tremendous impetus will be given for the R&D in this area. A regulatory framework will help in sorting out issues of ethics and copyrights, which are currently being faced by experts in the country.”

He said Rs 1,800 crore have been spent on nano mission and there are close to one thousand researchers working in nanotechnology across the country and a handful of discoveries have been made in the field. “Some potential discoveries from the Indian Institute of Science, Bangalore, Indian Institute of Technology, Delhi and the Advanced Research Centre for Powder Metallurgy and New Materials (ARCI), Hyderabad, have been successful and has been commercialised as well,” Chavan said.

“India spends about 1 per cent of gross domestic product on research and development (R&D), which is not very encouraging compared to other countries like the US, which spends 4 to 5 per cent on R&D. We are trying to double it, but at the same time, we would also like to see more participation from the public sector in this area. Of the 1 per cent about 75 to 76 per cent comes from the private sector which is exactly opposite in the western countries. The share of public sector is more there and so should happen in India,” Chavan said.

I find the focus on commercialization and intellectual property unexpected since the discussion on regulatory frameworks in Europe and the US tends to focus on environment, health, and safety issues. For an example about the latest on Europe and nanotechnology and regulatory frameworks, I found this in Tim Haper’s Sept. 29, 2010 posting on his TNTlog,

Plastics & Rubber Weekly reports that the Belgian Environment Minister, Paul Magnette proposed five elements that should be included in nanotechnology legislation, including

* A register of nanomaterials used within the EU is established, so regulators can trace the origin of any nanoparticles to their source if they cause health or environmental problems.

* Manufacturers and retailers inform consumers of the presence of nanomaterials in their products

* Regulations provide for risk evaluation and management of nanomaterials at an EU level

* Member states also draft integrated national strategies for nanotechnology risk management, information dissemination and monitoring

* Claims made on labels of products containing nanomaterials are controlled

What makes the contrast interesting for me is that Harper is the principal for the company, Cientifica (from the About page),

Cientfica is distinct from all other companies providing consulting and information services in its knowledge of both the science and business of emerging technologies. Cientifica employees are from a variety of backgrounds, but all are highly experienced technical project managers and familiar with the commercialization of technology and the transfer of science from the laboratory to the market place.

Cientifica’s numerous reports on commercial aspects of nanotechnology and other emerging technologies are well known for cutting through the hype and getting to the root of the issues. In the same way, Cientifica uses its experience in the reality of commercializing technologies and its wide network of international science and technology practitioners to provide down-to-earth and practical advice to companies, academics and governments.

Cientifica also provides advice to investors who are considering investment in emerging technology companies.

Through this experience Cientifica has a deep understanding of the drivers and associated risks associated with investment and management of cutting edge technology projects.

As you can see the company’s focus is on commercializing emerging technologies, including nanotechnology. By the way, I’m not trying to suggest that Harper doesn’t discuss regulatory frameworks with regard to commercializing nanotechnology. I’m pointing out my own unconscious expectations when the words ‘nanotechnology’,  ‘regulatory’, and ‘framework’ are put in the same sentence.

Love letter to the British Library

It happened in 2000 and I had no hint of it when I stepped through the doors of the British Library on the last afternoon of my trip to London. A fellow traveler had raved about one of the exhibits (I think it was called 1000 years of English literature) the day before my visit, otherwise I wouldn’t have bothered.

It awoke in me a passion I don’t often share but was roused again when I came across an article on Techdirt (by way of Michael Geist) about the British Library’s latest publication on copyright. From Mike Masnick’s article,

The paper brings together 13 different researchers to all share their opinions, and the general consensus appears to be that copyright today is a serious problem in need of reform (and, no, the “Digital Economy Act” in the UK didn’t help at all). Basically, the key points are that copyright shouldn’t be allowed to get in the way of research activities.

You can download a copy of the paper, Driving UK Research — Is copyright a help or a hindrance?, from Techdirt.

Dame Lynne Brindley, the Chief Executive Officer for the British Library had this to say in her introduction to the paper,

There is a supreme irony that just as technology is allowing greater access to books and other creative works than ever before for education and research, new restrictions threaten to lock away digital content in a way we would never countenance for printed material.

Let’s not wake up in five years’ time and realise we have unwittingly lost a fundamental building block for innovation, education and research in the UK. Who is protecting the public interest in the digital world? We need to redefine copyright in the digital age and find a balance to benefit creators, educators, researchers, the creative industries – and the knowledge economy. (p. 3)

Thirteen researchers and writers discuss how copyright has an impact on all kinds of research (music, theatre, law, the sciences, etc.) and some of the problems associated with using laws designed for print  in a digital world. Dr. Dave Roberts and Vince Smith of the Natural History Museum offer their take on the problems with copyright and scientists along with suggestions for improvements,

For working scientists copyright is at best an irritation and at worst an obstruction. The process of science requires the sharing of results so that both the individual researcher and their institution build reputation and the esteem of their peers through recognition of the quality of their work. Traditionally this has been done by publication on paper and has been characterised as a workflow where scientists, the majority of whom these days are publicly funded, create manuscripts that they submit to publishers, who get other scientists to evaluate and comment on the work (peer review). The publisher sells the result back to the scientists. In the classic model, used to defend copyright, the money made by publishers is apportioned between the creator (author) and the publisher. In science, not only does the author not see any money from their work, but the publisher demands an exclusive right to that income in perpetuity.

For scientific publishing:

• We urgently need to separate cases where there is substantial loss of income to a content creator though content dissemination (e.g. a professional musician) from those that make no income from dissemination and rely on this as part of their scholarly activities (e.g. a professional scientist). A positive start could be made by removing copyright restrictions on material older than, say, two years from its original publication date.

• Orphan works should be placed in the public domain.

• Making copies for strictly archival purposes should not be subject to copyright control. Libraries in particular should be able to preserve digital copies in perpetuity, which technologically means regularly making copies.

I’m not sure I buy their musician example as someone who suffers from a loss of income as a consequence of content dissemination when many musicians (including some famous ones) are giving away downloads of their music and exploring new business models but the suggestions themselves seem quite reasonable.

Thank you British Library for reminding me how much I love you. (blowing kisses from Canada’s West Coast).

Canada’s new copyright bill (C-32) and OECD’s take on intellectual property rights and innovation

Canada’s conservative government introduced a new bill (C-32) on copyright last Wednesday, June 2, 2010. The previous attempt, Bill C-61, died and, as I recall, that death occurred after furious protest largely concerning the ‘digital lock’ provision. This provision was modeled on a similar US provision, which has been highly contested in that country. For a brief description of a digital lock I went to Michael Geist’s blog where I found a posting answering 32 questions about Bill C-32,,

… what are anti-circumvention or digital lock provisions? The short answer is that they are provisions that grant legal protection to technological protection measures (TPMs). In plainer English, traditional copyright law grants creators a basket of exclusive rights in their work. TPMs or digital locks (such as copy-controls on CDs, DVDs, or e-books) effectively provide a second layer of protection by making it difficult for most people to copy or sometimes access works in digital format. Anti-circumvention legislation creates a third layer of protection by making it an infringement to simply pick or break the digital lock (in fact, it even goes further by making it an infringement to make available tools or devices that can be used to pick the digital lock). Under the Bill C-32, it would be an infringement to circumvent a TPM [digital lock] even if the intended use of the underlying work would not constitute traditional copyright infringement. [emphases mine]

I gather that even if I copy something that is now legal in Canada, e. g., make a photocopy of a page from a book for noncommercial purposes, that it will be illegal if I try this with an e-book where I need to break a digital lock. In effect, all copying becomes illegal if there’s a digital lock or other ‘technological protection measure’, which is likely with provisions such as this while we move to using more and more towards using digital media.

Intriguingly, an earlier posting by Michael Geist which focused on the original bill C-61 cited a research paper with a focus on copyright policy in Canada, the US, and Mexico where this was noted,

According to [Michèle] Austin [chief of staff for then Industry Canada Minister, Maxime Bernier], the decision to introduce U.S.-style DMCA [digital lock] rules in Canada in 2007 was strictly a political decision, the result of pressure from the Prime Minister’s Office desire to meet U.S. demands. She states “the Prime Minister’s Office’s position was, move quickly, satisfy the United States.” When Bernier and then-Canadian Heritage Minister Bev Oda protested, the PMO replied “we don’t care what you do, as long as the U.S. is satisfied.” [emphasis mine]

Thankfully, the new bill according to Geist and other sources he cites (I recommend reading his blog if you’re interested in this issue), is fairly balanced overall except for the digital lock provision.

There are two possibilities that come to mind when I consider how this ‘digital lock provision’ in the new copyright bill could have an impact on science in Canada. First, if publishers put locks on articles in science journals, you’d no longer be able to copy and paste selections (properly cited of course) into your own paper.

Second, copyright is a subclassification, along with patents and trademarks, of intellectual property law. While all three are intended to protect the creators of content, products, etc., they are often used as legal tools to intimidate competitors (large corporations or agencies such as the International Olympics Committee) or extort money (patent trolls), which tends to suppress innovation and competition. Restricting use through a new copyright law may not have a direct effect on patent law but the environment in which business and the legal profession operate will be affected and I strongly suspect adversely so.

I mentioned yesterday, The OECD Innovation Strategy: Getting a Head Start on Tomorrow and its Key Findings report. From p. 18,

An important contributor to building such networks and markets is the ability to own certain kinds of knowledge, as recognised by intellectual property rights [IPR]. IPRs provide an important incentive to invest in innovation by allowing firms to recover their investment costs. Patents are particularly important for small firms, as they can facilitate entry into new markets and enable competition and collaboration with other firms. IPRs should be well protected and appropriately enforced. Weak protection of IPRs undermines incentives to invest in innovation, facilitates counterfeiting and piracy, reduces the potential for technology transfer and limits the formation of markets for knowledge.

However, the protection of knowledge needs to be combined with policies and mechanisms that facilitate access and transfer. Excessively strong IPR may hamper the appropriate use of protected knowledge and discourage follow-on research and research in adjacent areas to the detriment of both competition and innovation.

I certainly consider the ‘digital lock provision’ in the current bill (C-32) as excessively strong and I don’t see how it helps innovation and competition (I think competition arises from innovation which is why I put it second).

Thinking about Canada’s copyright act, property rights, and slowing innovation

A new copyright bill is supposed to be introduced to Canada’s Parliament sometime this week according to both Michael Geist and the National Post. From Geist’s blog(May 19, 2010),

The National Post’s Don Martin reports that the copyright bill could be introduced next week with confirmation of the broad outlines of the bill I reported on earlier this month. Martin, who, describes the forthcoming bill as heavy-handed, reports:

All signals suggest Heritage Minister James Moore has triumphed over the objections of Industry Minister Tony Clement, setting up Canada to march in excessively protected lockstep with a United States that boasts the toughest laws against pirated music or movies on the planet.

In Geist’s latest post (May 25, 2010) on this issue,

The foundational principle behind C-61 was the primacy of digital locks. When a digital lock (often referred to as digital rights management or technological protection measure) is used – to control copying, access or stifle competition – the lock supersedes virtually all other rights. The fight over the issue has pitted the tech-savvy Industry Minister Tony Clement, who has reportedly argued for a flexible implementation, against Canadian Heritage Minister James Moore, who has adopted what many view as an out-of-touch approach that would bring back the digital lock provisions virtually unchanged.

Moore has declined to comment on his position, but his approach raises some difficult questions …

I have posted elsewhere about the impact that intellectual property law (which includes copyright, patents, and trademarks) can have on the practice of science/innovation, i.e. crippling it, and on how the number of patents received are used as a measure of scientific progress. It’s interesting that a measure for progress can also function as an impediment to it.

In contrast to the usual discussion about copyright, Mike Masnick (Techdirt) has written an article (May 24, 2010) that highlights the notion of fairness-based legal liability. From the article,

His [Marshall van Alstyne] most recent paper, co-authored with Gavin Clarkson, explores both how strict intellectual property rights lead to socially inefficient outcomes, and how “fairness” principles could be much more efficient. The paper uses a combination of real world examples, previous research and game theory to make a rather compelling case.

Basically, it explains all the reasons why intellectual property leads to hoarding of information that slows innovation:

Property rights provide incentives to create information but they also provide incentives to hoard it prior to the award of protection. All-or-nothing rights, in particular, limit prior sharing. An unintended consequence is to slow, not has- ten, forward progress when innovation hinges on combining disparately owned private ideas.

Apply this thinking (“… they [property rights] also provide incentives to hoard it prior to the award of protection”) to nanotechnology and the other emerging technologies all of which are highly dependent on interdisciplinary cooperation and you can see what starts happening. Then add some of the current copyright craziness (a YouTube clip of This hour has 22 minutes),

As the video makes clear, once ownership has been awarded, i.e. you have a copyright, there are the issues of control for the purposes of your business model.

It would seem that if the ‘new’ bill resembles the old bill, Canadians will be faced with the possibility of less innovation via this new law despite the feedback the government received during last summer’s public consultations and at a time when it’s been recognized that there is too little innovation in Canada.

NNI’s clumsy attempt to manipulate media; copyright roots

Is it ever a good idea to hand a bunch of experts at your public workshop on nanotechnology risks and ethical issues a list of the facts and comments that you’d like them to give in response to ‘difficult’ questions from the media after you’ve taken a recent shellacking from one reporter who is likely present? While the answer should be obvious, I’m sad to say that the folks at the US National Nanotechnology Initiative (NNI) publicly and demonstrably failed to answer correctly.

The reporter in question is Andrew Schneider who wrote a series on nanotechnology for AOL News. I’ve mentioned his series in passing a few times here and I’m truly disheartened to find myself discussing Schneider and it, one more time. For the record, I think it’s well written and there’s some good information about important problems unfortunately, there’s also a fair chunk of misleading and wrong information. So, in addition to the solid, well founded material, the series also provides examples of ill-informed and irresponsible science journalism. (Here’s an example of one of his misleading statements. If you want to find it, you have to read down a few paragraphs as that post was about misleading statements being bruited about by individuals with differing perspectives on nanotechnology.) The Schneider’s series, if you’re madly curious is here.

Yesterday, Clayton Teague, director for the National Nanotechnology Coordination Office, provided a riposte on AOL News where Schneider, a few hours, later, offered a devastating nonresponse. Instead, Schneider focused on the NNI’s recent report to the President’s Council of Science and Technology Advisors (PCAST) getting in a few solid hits before revealing the clumsy attempt to manipulate the media message at the public workshop that the NNI recently held and which Schneider likely attended.

If you want the inside story from the perspective of one of the experts who was at the panel, check out Dr. Andrew Maynard’s latest posting on his 2020 Science blog.

Two more points before I move on (for today anyway), Schneider’s ‘nonresponse’ refers to both Andrew and another expert as ‘civilians’.

  • Maynard [director of the Risk Science Center at the University of Michigan School of Public Health] and Jennifer Sass [chief scientist and nano expert for the Natural Resources Defense Council], both leading civilian public health scientists who participated in the review … [emphasis mine]
  • “Surely it is inappropriate for the federal government to advise independent experts what to say on its behalf when it comes to critical news reports,” added Maynard, who was one of the civilian advisers on the panel. [emphasis mine]

As far as I’m aware, only the police and the military refer to the rest of us (who are not them) as civilians. Is Schneider trying to suggest (purposely or not) a police or military state?

As for my second point. Somebody passed the list of NNI preferred/approved facts and comments on to Schneider. The first thought would be someone from the expert panel but it could have come from anyone within the NNI who had access and is sympathetic to Schneider’s concerns about nanotechnology.

Copyright roots

If you’ve ever been curious as to how copyright came about in the first place, head over to Greg Fenton’s item on Techdirt. From the posting where Fenton is commenting on a recent Economist article about copyright,

The Economist goes on to highlight:

Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right.

Surely there will be copyright supporters who will cringe at such a statement. They believe that copyright is “intellectual property”, and therefore their arguments often confuse the requirements for laws that support copyright with those that support physical properties.

The article Fenton refers to  is currently open access (but I’m not sure for how long or what the policy is at The Economist). The last lines (with which I heartily concur) from the Economist’s article,

The value society places on creativity means that fair use needs to be expanded and inadvertent infringement should be minimally penalised. None of this should get in the way of the enforcement of copyright, which remains a vital tool in the encouragement of learning. But tools are not ends in themselves. [emphasis mine]

Today’s posting is a short one. About time I did that, eh?

Dem bones at McGill; innovation from the Canadian business community?; the archiving frontier; linking and copyright

I have a number of bits today amongst them, Canadian nanotechnology, Canadian business innovation, digital archiving, and copyrights and linking.

A Quebec biotech company, Enobia Pharma is working with Dr. Marc McKee on treatments for genetic bone diseases. From the news item on Nanowerk,

The field is known as biomineralization and it involves cutting-edge, nanotech investigation into the proteins, enzymes and other molecules that control the coupling of mineral ions (calcium and phosphate) to form nano-crystals within the bone structure. The treatment, enzyme replacement therapy to treat hypophosphatasia, is currently undergoing clinical testing in several countries including Canada. Hypophosphatasia is a rare and severe disorder resulting in poor bone mineralization. In infants, symptoms include respiratory insufficiency, failure to thrive and rickets.

This research in biomineralization (coupling of mineral ions to form nano-crystals) could lead to better treatments for other conditions such as cardiovascular diseases, arthritis, and kidney stones.

McKee’s research is being funded in part by the Canadian Institutes of Health Research  From the Nanowerk news item,

McKee’s research program is a concrete example of how university researchers are working with private sector partners as an integral part of Canada’s innovative knowledge economy, and the positive outcomes their collaborations can offer.

I don’t think that businesses partnering with academic institutions in research collaborations is precisely what they mean when they talk about business innovation (research and development). From a March 2, 2010 article about innovation by Preston Manning in the Globe & Mail,

Government competition policy and support for science, technology, and innovation (STI) can complement business leadership on the innovation front, but it is not a substitute for such leadership. Action to increase innovation in the economy is first and foremost a business responsibility.

Manning goes on to describe what he’s done on this matter and asks for suggestions on how to encourage Canadian business to be more innovative. (Thanks to Pasco Phronesis for pointing me to Manning’s article.) I guess the problem is that what we’ve been doing has worked well enough and so there’s no great incentive to change.

I’ve been on an archiving kick lately and so here’s some more. The British Library recently (Feb.25.10) announced public access to their UK Web Archive, a project where they have been saving online materials. From the news release,

British Library Chief Executive, Dame Lynne Brindley said:

“Since 2004 the British Library has led the UK Web Archive in its mission to archive a record of the major cultural and social issues being discussed online. Throughout the project the Library has worked directly with copyright holders to capture and preserve over 6,000 carefully selected websites, helping to avoid the creation of a ‘digital black hole’ in the nation’s memory.

“Limited by the existing legal position, at the current rate it will be feasible to collect just 1% of all free UK websites by 2011. We hope the current DCMS consultation will enact the 2003 Legal Deposit Libraries Act and extend the provision of legal deposit through regulationto cover freely available UK websites, providingregular snapshots ofthe free UK web domain for the benefit of future research.”

Mike Masnick at Techdirt notes (here) that the British Library has to get permission (the legal position Dame Brindley refers to) to archive these materials and this would seem to be an instance where ‘fair use’ should be made to apply.

On the subject of losing data, I read an article by Mike Roberts for the Vancouver Province, January 22, 2006, p. B5 (digital copy here) that posed this question, What if the world lost its memory? It was essentially an interview with Luciana Duranti (chair of the Master of Archival Studies programme and professor at the School of Library, Archival and Information Studies at the University of British Columbia, Canada) where she commented about the memories we had already lost. From the article,

Alas, she says, every day something else is irretrievably lost.

The research records of the U.S. Marines for the past 25 years? Gone.

East German land-survey records vital to the reunification of Germany? Toast.

A piece of digital interactive music recorded by Canadian composer Keith Hamel just eight years ago?

“Inaccessible, over, finito,” says Duranti, educated in her native Italy and a UBC prof since 1987.

Duranti, director of InterPARES (International Research on Permanent Authentic Records in Electronic Systems), an international cyber-preservation project comprising 20 countries and 60 global archivists, says original documentation is a thing of the past.

I was shocked by how much ‘important’ information had been lost and I assume still is. (Getting back to the UK Web Archives, if they can only save 1% of the UK’s online material then a lot has got to be missing.)

For anyone curious about InterPARES, I got my link for the Roberts article from this page on the InterPARES 1 website.

Back to Techdirt and Mike Masnick who has educated me as to a practice I had noted but not realized is ‘the way things are done amongst journalists’. If you spend enough time on the web, you’ll notice stories that make their way to newspapers without any acknowledgment of  their web or writerly origins and I’m not talking about news releases which are designed for immediate placement in the media or rewritten/reworked before placement. From the post on Techdirt,

We recently wrote about how the NY Post was caught taking a blogger’s story and rewriting it for itself — noting the hypocrisy of a News Corp. newspaper copying from someone else, after Rupert Murdoch and his top execs have been going around decrying various news aggregators (and Google especially) for “stealing” from News Corp. newspapers. It’s even more ridiculous when you think about it — because the “stealing” that Rupert is upset about is Google linking to the original story — a step that his NY Post writer couldn’t even be bothered to do.

Of course, as a few people pointed out in the comments, this sort of “re-reporting” is quite common in the traditional news business. You see it all the time in newspapers, magazines and broadcast TV. They take a story that was found somewhere else and just “re-report” it, so that they have their own version of it.

That’s right, it’s ‘re-reporting’ without attributions or links. Masnick’s post (he’s bringing in Felix Salmon’s comments) attributes this to a ‘print’ mentality where reporters are accustomed to claiming first place and see acknowledgments and links as failure while ‘digital natives’ acknowledge and link regularly since they view these as signs of respect. I’m not going to disagree but I would like to point out that citing sources is pretty standard for academics or anyone trained in that field. I imagine most reporters have one university or college degree, surely they learned the importance of citing one’s sources. So does training as a journalist erode that understanding?

And, getting back to this morning’s archival subtheme, at the end of Clark Hoyt’s (blogger for NY Times) commentary about the plagiarism he had this to say,

Finally, The Times owes readers a full accounting. I asked [Philip] Corbett [standards editor] for the examples of Kouwe’s plagiarism and suggested that editors’ notes be appended to those articles on the Web site and in The Times’s electronic archives. Corbett would not provide the examples and said the paper was not inclined to flag them, partly because there were some clear-cut cases and others that were less clear. “Where do you draw the line?” he asked.

I’d draw it at those he regards as clear. To do otherwise is to leave a corrupted record within the archives of The Times. It is not the way to close the case.

One last thing, Heather Haley is one of the guests appearing tonight in Rock Against Prisons.

Tuesday, March 9, 2010

7:00pm – 11:55pm

Little Mountain Gallery

195 east 26th Ave [Vancouver, Canada]

More details from my previous announcement about this event here.

Australian government makes an unexpected nano announcement; San Diego, the Olympics of Science, and the AAAS; Manitoba high school student discusses copyright

Late last week I wrote about a new report, Nanotechnology in Australia: Trends, Applications and Collaborative Opportunities, that was supposed to be launched today. The news article which originated the story was by Cheryl Jones of The Australian, who noted,

THE number of Australian companies in a nanotechnology market likely to be worth trillions of dollars within a decade has plummeted, according to an Australian Academy of Science report.

Federal government reports previously put at about 80 the number of companies engaged in the technology underlying a burgeoning global market.

But now there are only 55 to 60, say nanotechnology experts cited in the academy report, to be released next week.

Little work has moved from the benchtop to the market, the report says, and one obstacle to commercialisation is “often dysfunctional” university intellectual property services.

I checked and this item from the Government of Australia was announced instead (from the Azo Materials site),

The Rudd Government is introducing a comprehensive national framework to guide the safe development of new technologies such as nanotechnology and biotechnology as part of a $38.2 million National Enabling Technologies Strategy released today.

“Technologies like nanotechnology and biotechnology have enormous potential, but we can only realise that potential with the community’s support,” said Innovation Minister, Senator Kim Carr.

“Health, safety and environmental protection are paramount for the Government. This strategy is about ensuring we meet the highest standards while at the same time maximising opportunities to develop these cutting-edge technologies.

I’m not sure what happened to the report but this announcement was a bit of a surprise. Given the material cited in Jones’ story, I would have expected the government to pull back rather than invest more heavily. It seems the government has recognized the barriers noted in the report (which has yet to be released or even seen by anyone other than Cheryl Jones [see my posting here] ETA: my apologies to Ms. Jones, I did find the report days later here at a location I failed to check, for penance I will leave my original wrong-headed and now embarrassing comment) and decided to address the issues head on.

Meanwhile, the ‘Olympics of Science’ is finishing today in San Diego (Feb. 18-22, 2010), the 176th annual meeting of the American Association for the Advancement of Science (AAAS). From the AAAS site,

The 2010 AAAS Annual Meeting is coming to San Diego for the first time, bringing cutting-edge research and a host of free events for the public in its role as the United States’ largest general scientific conference.

Described in The Times Higher Education Supplement as “the Olympics of science conferences,” the Annual Meeting has long been known as the premier multidisciplinary science gathering in the United States. This year, it will continue its evolution to a prime international affair: When the 176th meeting of the society convenes from 18-22 February, scientists, journalists, and educators from more than 50 nations will be there.

Under the banner “Bridging Science and Society,” top researchers will discuss their findings in the context of global challenges in the environment, economy, health, and education. Attendees can explore research in the neurosciences, energy, astrobiology, public health, and environmental change, and learn how these advances directly affect courtroom trials, care for the elderly, sustainable cities, border security, and other public concerns.

As part of an unprecedented effort to share the excitement of scientific discovery with the public, AAAS’s Family Science Days and other free events offer a chance at hands-on learning for students of all ages.

I mention it not just because I’m currently experiencing Vancouver’s Winter Olympics but because, in 2012, the AAAS  will be hosting its annual meeting in Vancouver.  To get a better idea of what this means, I’ve excerpted parts of a story by Maggie Koerth-Baker on Boing, Boing about attending some of the presentations at the AAAS 2010 San Diego Meeting. First an excerpt from a nanotechnology presentation,

[David] Cahill [University of Illinois] is part of a team working to improve thermal insulation with nanotechnology. His goal: Create some kind of new material that will disrupt the transfer of heat energy between two objects. Getting it right would have big implications. For instance, we could drastically improve our ability to capture the waste heat from electrical generation and put it to use in other ways.One possible solution is silicon nanowires. These structures are normally baby-butt smooth, but as you make their surfaces more and more rough, the nanowires conduct less and less thermal energy. Right now, it’s not exactly clear why that trick works. But understanding it could put Cahill’s team on the right path.

He’s not the only one taking energy technology nano. Another researcher on the same panel, Yi Cui, Ph.D., of Stanford, is applying nanostructures to energy storage, in hopes of developing smaller batteries that can hold more power.

In fact, according to Cui, nanotech is absolutely essential to any future progress with batteries. Storage capacity for size has plateaued, he explained. To go further, we have to start making electrodes out of completely different—and probably completely new—materials.

Note: I’ve mentioned Cui and his work at Stanford University here. More from Koerth-Baker, this time it’s from a science history presentation on measurements and averages,

Before that [1761], obviously, scientists still made mistakes. Multiple measurements or experiments still yielded varying results. But they dealt with the variation in a very different way—they picked the answer they thought represented their best work.

To modern ears, that sounds like cheating—”You just randomly decided on the number you liked best? That’s science?” But, at the time, it was perfectly logical. Historically, scientists viewed themselves as craftsmen,[Jeff]  Buchwald said. If you were building a piece of fine furniture, you wouldn’t make a bunch and pick the average to display. You’d choose the finished version that was the best, and best displayed your woodworking skill.

Intriguing, eh? If you want to find out who introduced the concept of averaging scientific measurements and why he was too embarrassed to publish this in his first research, do read Koerth-Baker’s piece.

For my last bit, I’m back on the copyright trail and thanks to Techdirt for alerting me to this essay on file-sharing and morality written by a grade 12 student at Balmoral Hall School (all girls) in Winnipeg,Manitoba. Kamal Dhillon won the 2010 Glassen Ethics competition,

This year’s essay topic was: “Is it OK to download music, movies and games without paying?” There were about 80 entries from high schools in Winnipeg and across the province. The contest, held annually since 2007, is jointly sponsored by The Centre for Professional and Applied Ethics and The Department of Philosophy at the University of Manitoba. The winner receives $1,000. The Winnipeg Free Press publishes the winning essay.

From the Winnipeg Free Press (Feb.13, 2010 edition), an excerpt from Dhillon’s essay,

MILLIONS of people, mostly but not all young, engage in file sharing.

The multinational corporations who make and sell the material are not happy with this development. Their profits are threatened and they, in turn, are threatening to sue, for huge amounts of money, individuals who engage in file sharing.

I support the act of file sharing and argue that the free sharing of these forms of intellectual property would likely produce, overall, more good than harm for society.

It’s a thoughtful piece and well worth reading.