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Copyright, artificial intelligence, and thoughts about cyborgs

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I’ve been holding this one for a while and now, it seems like a good followup to yesterday’s, October 20, 2025 posting about “AI and the Art of Being Human,” which touches on co-writing and my October 13, 2025 posting and its mention of “Who’s afraid of AI? Arts, Sciences , and the Futures of Intelligence,” a conference and arts festival at the University of Toronto (scroll down to the “Who’s Afraid of AI …” subhead).

With the advent of some of the latest advances in artificial intelligence (AI) and its use in creative content, the view on copyright (as a form of property) seems to be shifting. In putting this post together I’ve highlighted a blog posting that focuses on copyright and AI as it is commonly viewed. Following that piece, is a look at N. Katherine Hayles’ concept of AI as one of a number of cognitive assemblages and the implications of that concept where AI and copyright are concerned.

Then, it gets more complicated. What happens when your neural implant has an AI component? It’s question asked by members of a Canadian legal firm, McMillan LLP, a business law firm in their investigation of copyright. (The implication of this type of cognitive assemblage is not explicitly considered in Hayles’ work.) Following on the idea of a neural implant enhanced with AI, cyborg bugs (they too can have neural implants) are considered.

Uncomplicated vision of AI and copyright future

Glyn Moody’s May 15, 2025 posting on techdirt.com provides a very brief overview of the last 100 years of copyright and goes on to highlight some of the latest AI comments from tech industry titans, Note: Links have been removed,

For the last hundred years or so, the prevailing dogma has been that copyright is an unalloyed good [emphasis mine], and that more of it is better. Whether that was ever true is one question, but it is certainly not the case since we entered the digital era, for reasons explained at length in Walled Culture the book (free digital versions available). Despite that fact, recent attempts to halt the constant expansion and strengthening of copyright have all foundered. Part of the problem is that there has never been a constituency with enough political clout to counter the huge power of the copyright industry and its lobbyists.

Until now. The latest iteration of artificial intelligence has captured the attention of politicians around the world [emphasis mine]. It seems that the latter can’t do enough to promote and support it, in the hope of deriving huge economic benefits, both directly, in the form of local AI companies worth trillions, and indirectly, through increased efficiency and improved services. That current favoured status has given AI leaders permission to start saying the unsayable: that copyright is an obstacle to progress [emphasis mine], and should be reined in, or at least muzzled, in order to allow AI to reach its full potential. …

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In its own suggestions for the AI Action Plan, Google spells out what this means:

Balanced copyright rules, such as fair use and text-and-data mining exceptions, have been critical to enabling AI systems to learn from prior knowledge and publicly available data, unlocking scientific and social advances. These exceptions allow for the use of copyrighted, publicly available material for AI training without significantly impacting rightsholders and avoid often highly unpredictable, imbalanced, and lengthy negotiations with data holders during model development or scientific experimentation. Balanced copyright laws that ensure access to publicly available scientific papers, for example, are essential for accelerating AI in science, particularly for applications that sift through scientific literature for insights or new hypotheses.

… some of the biggest personalities in the tech world have gone even further, reported here by TechCrunch:

Jack Dorsey, co-founder of Twitter (now X) and Square (now Block), sparked a weekend’s worth of debate around intellectual property, patents, and copyright, with a characteristically terse post declaring, “delete all IP law.”

X’s current owner, Elon Musk, quickly replied, “I agree.”

It’s not clear what exactly brought these comments on, but they come at a time when AI companies, including OpenAI (which Musk co-founded, competes with, and is challenging in court), are facing numerous lawsuits alleging that they’ve violated copyright to train their models.

Unsurprisingly, that bold suggestion provoked howls of outrage from various players in the copyright world. That was to be expected. But the fact that big names like Musk and Dorsey were happy to cause such a storm is indicative of the changed atmosphere in the world of copyright and beyond. Indeed, there are signs that the other main intellectual monopolies – patents and trademarks – are also under pressure. Calling into question the old ways of doing things in these fields will also weaken the presumption that copyright must be preserved in its current state.

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Yes, it is interesting to see tech moguls such as Jack Dorsey and Elon Musk take a more ‘enlightened’ approach to copyright. However, there may be a few twists and turns to this story as it continues to develop..

Copyright and cognitive assemblages

I need to set the stage with something coming from N. Katherine Hayles’ 2025 book “Bacteria to AI; Human Futures with our Nonhuman Symbionts.” She suggests that we (humans) will be members in cognitive assemblages including bacteria, plants, cells, AI, and more. She then decouples cognition from consciousness and claims entities such as bacteria, etc. are capable of ‘nonconscious cognition’.

Hayles avoids the words ‘thinking’ and ‘thought’ by using cognition and providing this meaning for the word,

… “cognition is a process that interprets information within contexts that connect it with meaning” (Hayles 2017, 22 [in “Unthought: The power of the Cognitive Nonconscious”‘ University of Chicago Press]) Note: Hayles quotes herself on pp. 8-9 in 2025’s “Bacteria to AI ..”

Hayles then develops the notion of a cognitive assemblage made up of conscious (e.g. human) and nonconscious (e.g. AI agent) cognitions. The part that most interests me is where Hayles examines copyright and cognitive assemblages,

.. what happens to the whole idea of intellectual property when an AI has perused copyrighted works during its training and incorporated them into its general sense of how to produce a picture of X or a poem about Y. Already artists and stakeholders are confronting similar issues in the age of remixing and modifying existing content. how much of a picture, or a song, needs to be altered for it not to count as copyright infringement? As legal cases like this work their way through the courts, collective intelligence will doubt continue to spread through the cultures of developed countries, as more and more people come to rely on ChatGPT and similar models for more and more tasks. Thus our cultures edge toward the realization that the very idea of intellectual property as something owned by an individual who has exclusive rights to it may need to be rethought [emphasis mine] and reconceptualized on a basis consistent with the reality of collective intelligence [emphasis mine] and the pervasiveness of cognitive assemblages in producing products of value in the contemporary era. [pp. 226 – 227 in Hayles’ 2025 book, “Bacteria to AI …]

It certainly seems as if the notion of intellectual property as personal property is being seriously challenged (and not by academics alone) but this state of affairs may be temporary. In particular, the tech titans see a benefit to loosening the rules now but what happens if they see an advantage to tightening the rules?

Neurotechnology, AI, and copyright

Neuralink states clearly that AI is part of their (and presumably other company’s) products, from the “Neuralink and AI: Bridging the Gap Between Humans and Machines,” Note: Links have been removed,

The intersection of artificial intelligence (AI) and human cognition is no longer a distant sci-fi dream—it’s rapidly becoming reality. At the forefront of this revolution is Neuralink, a neurotechnology company founded by Elon Musk in 2016, dedicated to creating brain-computer interfaces (BCIs) that seamlessly connect the human brain to machines. With AI advancing at an unprecedented pace, Neuralink aims to bridge the gap between humans and technology, offering transformative possibilities for healthcare, communication, and even human evolution. In this article, we’ll explore how Neuralink and AI are reshaping our future, the science behind this innovation, its potential applications, and the ethical questions it raises.

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Robbie Grant, Yue Fei, and Adelaide Egan (plus Articling Students: Aki Kamoshida and Sara Toufic) have given their April 17, 2025 article for McMillan LLP, a Canadian business law firm, a (I couldn’t resist the wordplay) ‘thought provoking’ title, “Who Owns a Thought? Navigating Legal Issues in Neurotech” for a very interesting read, Note 1: Links have been removed, Note 2: I’ve included the numbers for the footnotes but not the footnotes themselves,

The ongoing expansion of Neurotechnology (or “neurotech”) for consumers is raising questions related to privacy and ownership of one’s thoughts, as well as what will happen when technology can go beyond merely influencing humans and enter the realm of control {emphasis mine}.

Last year, a group of McGill students built a mind-controlled wheelchair in just 30 days.[1] Brain2Qwerty, Meta’s neuroscience project which translates brain activity into text, claims to allow for users to “type” with their minds.[2] Neuralink, a company founded by Elon Musk {emphasis mine}, is beginning clinical trials in Canada testing a fully wireless, remotely controllable device to be inserted into a user’s brain {emphasis mine}.[3] This comes several years after the company released a video of a monkey playing videogames with its mind using a similar implantable device.

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The authors have included a good description of neurotech, from their April 17, 2025 article,

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Neurotech refers to technology that records, analyzes or modifies the neurons in the human nervous system. Neurotech can be broken down into three subcategories:

    Neuroimaging: technology that monitors brain structure and function;

    Neuromodulation: technology that influences brain function; and

    Brain-Computer Interfaces or “BCIs”: technology that facilitates direct communication between the brain’s electrical activity and an external device, sometimes referred to as brain-machine interfaces.[5]

In the medical and research context, neurotech has been deployed for decades in one form or another. Neuroimaging techniques such as EEG, MRI and PET have been used to study and analyze brain activity.[6] Neuromodulation has also been used for the treatment of various diseases, such as for deep brain stimulation for Parkinson’s disease[7] as well as for cochlear implants.[8] However, the potential for applications of neurotech beyond medical devices is a newer development, accelerated by the arrival of less intrusive neurotech devices, and innovations in artificial intelligence.

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My interests here are not the same as the authors’, the focus in this posting is solely on intellectual property, from their April 17, 2025 article,

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3.  Intellectual Property

As neurotech continues to advance, it is possible that it will be able to make sense of complex, subconscious data such as dreams. This will present a host of novel IP challenges, which stem from the unique nature of the data being captured, the potential for the technology to generate new insights, and the fundamental questions about ownership and rights in a realm where personal thoughts become part of the technological process.

Ownership of Summarized Data: When neurotech is able to capture subconscious thoughts, [emphasis mine] it will likely process this data into summaries that reflect aspects of an individual’s mental state. The ownership of such summaries, however, can become contentious. On the one hand, it could be argued that the individual, as the originator of their thoughts, should own the summaries. On the other hand, one could argue that the summaries would not exist but for the processing done by the technology and hence the summaries should not be owned (or exclusively owned) by the individual. The challenge may be in determining whether the summary is a transformation of the data that makes it the product of the technology, or whether it remains simply a condensed version of the individual’s thoughts, in which case it makes sense for the individual to retain ownership.

Ownership of Creative Outputs: The situation becomes more complicated if the neurotech produces creative outputs based on the subconscious thoughts captured by the technology. For example, if the neurotech uses subconscious imagery or emotions to create art, music, or other works, who owns the rights to these works? Is the individual whose thoughts were analyzed the creator of the work, or does the technology, which has facilitated and interpreted those thoughts, hold some ownership? This issue is especially pertinent in a world where AI-generated creations are already challenging traditional ideas of IP ownership. For example, in many jurisdictions, ownership of copyrightable works is tied to the individual who conceived them.[27] Uncertainty can arise in cases where works are created with neurotech, where the individual whose thoughts are captured may not be aware of the process, or their thoughts may have been altered or combined with other information to produce the works. These uncertainties could have significant implications for IP ownership, compensation, and the extent to which individuals can control or profit from the thoughts embedded in their own subconscious minds.

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The reference to capturing data from subconscious thought and how that might be used in creative outputs is fascinating. This sounds like a description of one of Hayles’ cognitive assemblages with the complicating factor of a technology that is owned by a company. (Will Elon Musk be quite so cavalier about copyright when he could potentially own your thoughts and, consequently, your creative output?)

If you have the time (it’s an 11 minute read according to the authors), the whole April 17, 2025 article is worth it as the authors cover more issues (confidentiality, Health Canada oversight, etc.) than I have included here.

I also stumbled across the issue of neurotech tech companies and ownership of brain data (not copyright but you can see how this all begins to converge) in a February 29, 2024 posting “Portable and non-invasive (?) mind-reading AI (artificial intelligence) turns thoughts into text and some thoughts about the near future” where I featured this quote (scroll down about 70% of the way),

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Huth [Alexander Huth, assistant professor of Neuroscience and Computer Science at the University of Texas at Austin] and Tang [Jerry Tang, PhD student in the Department of Computer Science at the University of Texas Austin] concluded that brain data, therefore, should be closely guarded, especially in the realm of consumer products. In an article on Medium from last April, Tang wrote that “decoding technology is continually improving, and the information that could be decoded from a brain scan a year from now may be very different from what can be decoded today. It is crucial that companies are transparent about what they intend to do with brain data and take measures to ensure that brain data is carefully protected.” (Yuste [Rafael Yuste, a Columbia University neuroscientist] said the Neurorights Foundation recently surveyed the user agreements of 30 neurotech companies and found that all of them claim ownership of users’ brain data — and most assert the right to sell that data to third parties. [emphases mine]) Despite these concerns, however, Huth and Tang maintained that the potential benefits of these technologies outweighed their risks, provided the proper guardrails [emphasis mine] were put in place.

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While I’m still with neurotech, there’s another aspect to be considered as noted in my April 5, 2022 posting “Going blind when your neural implant company flirts with bankruptcy (long read).” My long read is probably 15 mins. or more.

Ending on a neurotech device/implant note, here’s a November 20, 2024 University Hospital Network (UHN) news release burbling happily about their new clinical trial involving Neurolink

UHN is proud to be selected as the first hospital in Canada to perform a pioneering neurosurgical procedure involving the Neuralink implantable device as part of the CAN-PRIME study, marking a significant milestone in the field of medical innovation.

This first procedure in Canada represents an exciting new research direction in neurosurgery and will involve the implantation of a wireless brain-computer interface (BCI) at UHN’s Toronto Western Hospital, the exclusive surgical site in Canada.

“We are incredibly proud to be at the forefront of this research advancement in neurosurgery,” says Dr. Kevin Smith, UHN’s President and CEO. “This progress is a testament to the dedication and expertise of our world-leading medical and research professionals, as well as our commitment to providing the most innovative and effective treatments for patients.

“As the first and exclusive surgical site in Canada to perform this procedure, we will be continuing to shape the future of neurological care and further defining our track record for doing what hasn’t been done.”

Neuralink has received Health Canada approval to begin recruiting for this clinical trial in Canada.

The goal of the CAN-PRIME Study (short for Canadian Precise Robotically Implanted Brain-Computer Interface), according to the study synopsis, is “to evaluate the safety of our implant (N1) and surgical robot (R1) and assess the initial functionality of our BCI for enabling people with quadriplegia to control external devices with their thoughts [emphasis mine].”

Patients with limited or no ability to use both hands due to cervical spinal cord injury or amyotrophic lateral sclerosis (ALS), may be eligible for the CAN-PRIME Study.

“This landmark surgery has the potential to transform and improve outcomes for patients who previously had limited options,” says Dr. Andres Lozano, the Alan and Susan Hudson Cornerstone Chair in Neurosurgery at UHN and lead of the CAN-PRIME study at UHN.

The procedure, which combines state-of-the-art technology and advanced surgical techniques, will be carried out by a multidisciplinary team of neurosurgeons, neuroscientists and medical experts at UHN.

“This is a perfect example of how scientific discovery, technological innovation, and clinical expertise come together to develop new approaches to continuously improve patient care,” says Dr. Brad Wouters, Executive Vice President of Science & Research at UHN. “As Canada’s No. 1 research hospital, we are proud to be leading this important trial in Canada that has the goal to improve the lives of individuals living with quadriplegia or ALS.”

The procedure has already generated significant attention within the medical community and further studies are planned to assess its long-term effectiveness and safety.

UHN is recognized for finding solutions beyond boundaries, achieving firsts and leading the development and implementation of the latest breakthroughs in health care to benefit patients across Canada, and around the world.

Not just human brains: cyborg bugs and other biohybrids

Brain-computer interfaces don’t have to be passively accepting instructions from humans, they could also be giving instructions to humans. I don’t have anything that makes the possibility explicit except by inference. For example, let’s look at cyborg bugs, from a May 13, 2025 article “We can turn bugs into flying, crawling RoboCops. Does that mean we should” by Carlyn Zwarenstein for salon.com, Note: Links have been removed,

Imagine a tiny fly-like drone with delicate translucent wings and multi-lensed eyes, scouting out enemies who won’t even notice it’s there. Or a substantial cockroach-like robot, off on a little trip to check out a nuclear accident, wearing a cute little backpack, fearless, regardless of what the Geiger counter says. These little engineered creatures might engage in search and rescue — surveillance, environmental or otherwise — inspecting dangerous areas you would not want to send a human being into, like a tunnel or building that could collapse at any moment, or a facility where there’s been a gas leak.

These robots are blazing new ethical terrain. That’s because they are not animals performing tasks for humans, nor are they robots that draw inspiration from nature. The drone that looks like a fly is both machine and bug. The Madagascar hissing cockroach robot doesn’t just perfectly mimic the attributes that allow cockroaches to withstand radiation and poisonous air: it is a real life animal, and it is also a mechanical creature controlled remotely. These are tiny cyborgs, though even tinier ones exist, involving microbes like bacteria or even a type of white blood cell. Like fictional police officer Alex Murphy who is remade into RoboCop, these real-life cyborgs act via algorithms rather than free will.

Even as the technology for the creation of biohybrids, of which cyborgs are just the most ethically fraught category, has advanced in leaps and bounds, separate research on animal consciousness has been revealing the basis for considering insects just as we might other animals. (If you look at a tree of life, you will see that insects are indeed animals and therefore share part of our evolutionary history: even our nervous systems are not completely alien to theirs). Do we have the right to turn insects into cyborgs that we can control to do our bidding, including our military bidding, if they feel pain or have preferences or anxieties?

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… the boundaries that keep an insect — a hawkmoth or cockroach, in one such project — under human control can be invisibly and automatically generated from the very backpack it wears, with researchers nudging it with neurostimulation pulses to guide it back within the boundaries of its invisible fence if it tries to stray away.

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As a society, you can’t really say we’ve spent significant time considering the ethics of taking a living creature and using it literally as a machine, although reporter Ariel Yu, reviewing some of the factors to take into account in a 2024 story inspired by the backpack-wearing roaches, framed the ethical dilemma not in terms of the use of an animal as a machine — you could say using an ox to pull a cart is doing that — but specifically the fact that we’re now able to take direct control of an animal’s nervous system. Though as a society we haven’t really talked this through either, within the field of bioengineering, researchers are giving it some attention.

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If it can be done to bugs and other creatures, why not us (ethics???)

The issues raised in Zwarenstein’s article could also be applied to humans. Given how I started this piece, ‘who owns a thought’ could become where did the thought come from? Could a brain-computer interface (BCI) enabled by AI be receiving thoughts from someone other than the person who has it implanted in their brain? And, if you’re the one with the BCI, how would you know? In short, could your BCI or other implant be hacked? That’s definitely a possibility researchers at Rice University (Texas, US) have prepared for according to my March 27, 2025 posting, “New security protocol to protect miniaturized wireless medical implants from cyberthreats.”

Even with no ‘interference’ and begging the question of corporate ownership, if all the thoughts weren’t ‘yours’, would you still be you?

Symbiosis and your implant

I have a striking excerpt from a September 17, 2020 post (Turning brain-controlled wireless electronic prostheses into reality plus some ethical points),

This was the most recent and most directly applicable work that I could find. From a July 24, 2019 article by Liam Drew for Nature Outlook: The brain,

“It becomes part of you,” Patient 6 said, describing the technology that enabled her, after 45 years of severe epilepsy, to halt her disabling seizures. Electrodes had been implanted on the surface of her brain that would send a signal to a hand-held device when they detected signs of impending epileptic activity. On hearing a warning from the device, Patient 6 knew to take a dose of medication to halt the coming seizure.

“You grow gradually into it and get used to it, so it then becomes a part of every day,” she told Frederic Gilbert, an ethicist who studies brain–computer interfaces (BCIs) at the University of Tasmania in Hobart, Australia. “It became me,” she said. [emphasis mine]

Gilbert was interviewing six people who had participated in the first clinical trial of a predictive BCI to help understand how living with a computer that monitors brain activity directly affects individuals psychologically1. Patient 6’s experience was extreme: Gilbert describes her relationship with her BCI as a “radical symbiosis”.

Symbiosis is a term, borrowed from ecology, that means an intimate co-existence of two species for mutual advantage. As technologists work towards directly connecting the human brain to computers, it is increasingly being used to describe humans’ potential relationship with artificial intelligence.

Interface technologies are divided into those that ‘read’ the brain to record brain activity and decode its meaning, and those that ‘write’ to the brain to manipulate activity in specific regions and affect their function.

Commercial research is opaque, but scientists at social-media platform Facebook are known to be pursuing brain-reading techniques for use in headsets that would convert users’ brain activity into text. And neurotechnology companies such as Kernel in Los Angeles, California, and Neuralink, founded by Elon Musk in San Francisco, California, predict bidirectional coupling in which computers respond to people’s brain activity and insert information into their neural circuitry. [emphasis mine]

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This isn’t the first time I’ve used that excerpt or the first time I’ve waded into the ethics question regarding implants. For the curious, I mentioned the April 5, 2022 post “Going blind when your neural implant company flirts with bankruptcy (long read)” earlier and there’s a February 23, 2024 post “Neural (brain) implants and hype (long read)” as well as others.

So, who does own a thought?

Hayles’ notion of assemblages puts into question the notion of a ‘self’ or, if you will, an ‘I’. (Segue: Hayles will be in Toronto for the Who’s Afraid of AI? Arts, Sciences, and the Futures of Intelligence conference, October 23 – 24, 2025.) More questions have been raised with some of the older research about our relationships with AI: (1) see my December 3, 2021 posting “True love with AI (artificial intelligence): The Nature of Things explores emotional and creative AI (long read)” and newer research (2) see my upcoming post “A collaborating robot as part of your “extended” body.”

While I seem to have wandered into labyrinthine philosophical questions, I suspect lawyers will work towards more concrete definitions so that any questions that arise such as ‘who owns a thought’ can be argued and resolved in court.

Radical copyright reform proposal in the European Union

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It seems the impulse to maximize copyright control has overtaken European Union officials. A Sept. 14, 2016 news item on phys.org lays out a few details,

The EU will overhaul copyright law to shake up how online news and entertainment is paid for in Europe, under proposals announced by European Commission chief Jean-Claude Juncker Wednesday [Sept. 14, 2016].

Pop stars such as Coldplay and Lady Gaga will hail part of the plan as a new weapon to bring a fair fight to YouTube, the Google-owned video service that they say is sapping the music business.

But the reform plans have attracted the fury of filmmakers and start-up investors who see it as a threat to European innovation and a wrong-headed favour to powerful media groups.

A Sept. 14, 2016 European Commission press release provides the European Union’s version of why more stringent copyright is needed,

“I want journalists, publishers and authors to be paid fairly for their work, whether it is made in studios or living rooms, whether it is disseminated offline or online, whether it is published via a copying machine or commercially hyperlinked on the web.”–President Juncker, State of the Union 2016

On the occasion of President Juncker’s 2016 State of the Union address, the Commission today set out proposals on the modernisation of copyright to increase cultural diversity in Europe and content available online, while bringing clearer rules for all online players. The proposals will also bring tools for innovation to education, research and cultural heritage institutions.

Digital technologies are changing the way music, films, TV, radio, books and the press are produced, distributed and accessed. New online services such as music streaming, video-on-demand platforms and news aggregators have become very popular, while consumers increasingly expect to access cultural content on the move and across borders. The new digital landscape will create opportunities for European creators as long as the rules offer legal certainty and clarity to all players. As a key part of its Digital Single Market strategy, the Commission has adopted proposals today to allow:

  • Better choice and access to content online and across borders
  • Improved copyright rules on education, research, cultural heritage and inclusion of disabled people
  • A fairer and sustainable marketplace for creators, the creative industries and the press

Andrus Ansip, Vice-President for the Digital Single Market, said: “Europeans want cross-border access to our rich and diverse culture. Our proposal will ensure that more content will be available, transforming Europe’s copyright rules in light of a new digital reality. Europe’s creative content should not be locked-up, but it should also be highly protected, in particular to improve the remuneration possibilities for our creators. We said we would deliver all our initiatives to create a Digital Single Market by the end of the year and we keep our promises. Without a properly functioning Digital Single Market we will miss out on creativity, growth and jobs.”

Günther H. Oettinger, Commissioner for the Digital Economy and Society, said: “Our creative industries [emphasis mine] will benefit from these reforms which tackle the challenges of the digital age successfully while offering European consumers a wider choice of content to enjoy. We are proposing a copyright environment that is stimulating, fair and rewards investment.”

Today, almost half of EU internet users listen to music, watch TV series and films or play games online; however broadcasters and other operators find it hard to clear rights for their online or digital services when they want to offer them in other EU countries. Similarly, the socio-economically important sectors of education, research and cultural heritage too often face restrictions or legal uncertainty which holds back their digital innovation when using copyright protected content, including across borders. Finally, creators, other right holders and press publishers are often unable to negotiate the conditions and also payment for the online use of their works and performances.

Altogether, today’s copyright proposals have three main priorities:

1. Better choice and access to content online and across borders

With our proposal on the portability of online content presented in December 2015, we gave consumers the right to use their online subscriptions to films, music, ebooks when they are away from their home country, for example on holidays or business trips. Today, we propose a legal mechanism for broadcasters to obtain more easily the authorisations they need from right holders to transmit programmes online in other EU Member States. This is about programmes that broadcasters transmit online at the same time as their broadcast as well as their catch-up services that they wish to make available online in other Member States, such as MyTF1 in France, ZDF Mediathek in Germany, TV3 Play in Denmark, Sweden and the Baltic States and AtresPlayer in Spain. Empowering broadcasters to make the vast majority of their content, such as news, cultural, political, documentary or entertainment programmes, shown also in other Member States will give more choice to consumers.

Today’s rules also make it easier for operators who offer packages of channels (such as Proximus TV in Belgium, Movistar+ in Spain, Deutsche Telekom’s IPTV Entertain in Germany), to get the authorisations they need: instead of having to negotiate individually with every right holder in order to offer such packages of channels originating in other EU Member States, they will be able to get the licenses from collective management organisations representing right holders. This will also increase the choice of content for their customers.

To help development of Video-on-Demand (VoD) offerings in Europe, we ask Member States to set up negotiation bodies to help reach licensing deals, including those for cross-border services, between audiovisual rightholders and VoD platforms. A dialogue with the audiovisual industry on licensing issues and the use of innovative tools like licensing hubs will complement this mechanism.

To enhance access to Europe’s rich cultural heritage, the new Copyright Directive will help museums, archives and other institutions to digitise and make available across borders out-of commerce works, such as books or films that are protected by copyright, but no longer available to the public.

In parallel the Commission will use its €1.46 billion Creative Europe MEDIA programme to further support the circulation of creative content across borders . This includes more funding for subtitling and dubbing; a new catalogue of European audiovisual works for VoD providers that they can directly use for programming; and online tools to improve the digital distribution of European audiovisual works and make them easier to find and view online.

These combined actions will encourage people to discover TV and radio programmes from other European countries, keep in touch with their home countries when living in another Member State and enhance the availability of European films, including across borders, hence highlighting Europe’s rich cultural diversity.

2. Improving copyright rules on research, education and inclusion of disable [sic] people

Students and teachers are eager to use digital materials and technologies for learning, but today almost 1 in 4 educators encounter copyright-related restrictions in their digital teaching activities every week. The Commission has proposed today a new exception to allow educational establishments to use materials to illustrate teaching through digital tools and in online courses across borders.

The proposed Directive will also make it easier for researchers across the EU to use text and data mining (TDM) technologies to analyse large sets of data. This will provide a much needed boost to innovative research considering that today nearly all scientific publications are digital and their overall volume is increasing by 8-9% every year worldwide.

The Commission also proposes a new mandatory EU exception which will allow cultural heritage institutions to preserve works digitally, crucial for the survival of cultural heritage and for citizens’ access in the long term.

Finally, the Commission is proposing legislation to implement the Marrakesh Treaty to facilitate access to published works for persons who are blind, have other visual impairments or are otherwise print disabled. These measures are important to ensure that copyright does not constitute a barrier to the full participation in society of all citizens and will allow for the exchange of accessible format copies within the EU and with third countries that are parties to the Treaty, avoiding duplication of work and waste of resources.

3. A fairer and sustainable marketplace for creators and press

The Copyright Directive aims to reinforce the position of right holders to negotiate and be remunerated for the online exploitation of their content on video-sharing platforms such as YouTube or Dailymotion. Such platforms will have an obligation to deploy effective means such as technology to automatically detect songs or audiovisual works which right holders have identified and agreed with the platforms either to authorise or remove.

Newspapers, magazines and other press publications have benefited from the shift from print to digital and online services like social media and news aggregators. It has led to broader audiences, but it has also impacted advertising revenue and made the licensing and enforcement of the rights in these publications increasingly difficult.The Commission proposes to introduce a new related right for publishers, similar to the right that already exists under EU law for film producers, record (phonogram) producers and other players in the creative industries like broadcasters.

The new right recognises the important role press publishers play in investing in and creating quality journalistic content, which is essential for citizens’ access to knowledge in our democratic societies. As they will be legally recognised as right holders for the very first time they will be in a better position when they negotiate the use of their content with online services using or enabling access to it, and better able to fight piracy. This approach will give all players a clear legal framework when licensing content for digital uses, and help the development of innovative business models for the benefit of consumers.

The draft Directive also obliges publishers and producers to be transparent and inform authors or performers about profits they made with their works. It also puts in place a mechanism to help authors and performers to obtain a fair share when negotiating remuneration with producers and publishers. This should lead to higher level of trust among all players in the digital value chain.

Towards a Digital Single Market

As part of the Digital Single Market strategy presented in May 2015, today’s proposals complement the proposed regulation on portability of legal content (December 2015), the revised Audiovisual Media and Services Directive, the Communication on online platforms (May 2016). Later this autumn the Commission will propose to improve enforcement of all types of intellectual property rights, including copyright.

Today’s EU copyright rules, presented along with initiatives to boost internet connectivity in the EU (press release – press conference at 15.15 CET), are part of the EU strategy to create a Digital Single Market (DSM). The Commission set out 16 initiatives (press release) and is on the right track to deliver all of them the end of this year.

While Juncker mixes industry (publishers) with content creators (journalists, authors), Günther H. Oettinger, Commissioner for the Digital Economy and Society clearly states that ‘creative industries’ are to be the beneficiaries. Business interests have tended to benefit disproportionately under current copyright regimes. The disruption posed by digital content has caused these businesses some agony and they have responded by lobbying vigorously to maximize copyright. For the most part, individual musicians, authors, visual artists and other content creators are highly unlikely to benefit from this latest reform.

I’m not a big fan of Google or its ‘stepchild’, YouTube but it should be noted that at least one career would not have existed without free and easy access to videos, Justin Bieber’s. He may not have made a penny from his YouTube videos but that hasn’t hurt his financial picture. Without YouTube, he would have been unlikely to get the exposure and recognition which have in turn led him to some serious financial opportunities.

I am somewhat less interested in the show business aspect than I am in the impact this could have on science as per section (2. Improving copyright rules on research, education and inclusion of disable [sic] people) of the European Commission press release. A Sept. 14, 2016 posting about a previous ruling on copyright in Europe by Mike Masnick for Techdirt provides some insight into the possible future impacts on science research,

Last week [Sept. 8, 2016 posting], we wrote about a terrible copyright ruling from the Court of Justice of the EU, which basically says that any for-profit entity that links to infringing material can be held liable for direct infringement, as the “for-profit” nature of the work is seen as evidence that they knew or should have known the work was infringing. We discussed the problems with this standard in our post, and there’s been a lot of commentary on what this will mean for Europe — with a variety of viewpoints being expressed. One really interesting set of concerns comes from Egon Willighagen, from Maastricht University, noting what a total and complete mess this is going to be for scientists, who rarely consider the copyright status of various data as databases they rely on are built up …

This is, of course, not the first time we’ve noted the problems of intellectual property in the science world. From various journals locking up research to the rise of patents scaring off researchers from sharing data, intellectual property keeps getting in the way of science, rather than supporting it. And that’s extremely unfortunate. I mean, after all, in the US specifically, the Constitution specifically says that copyrights and patents are supposed to be about “promoting the progress of science and the useful arts.”

Over and over again, though, we see that the law has been twisted and distorted and extended and expanded in such a way that is designed to protect a very narrow set of interests, at the expense of many others, including the public who would benefit from greater sharing and collaboration and open flow of data among scientific researchers. …

Masnick has also written up a Sept. 14, 2016 posting devoted to the EU copyright proposal itself,

This is not a surprise given the earlier leaks of what the EU Commission was cooking up for a copyright reform package, but the end result is here and it’s a complete disaster for everyone. And I do mean everyone. Some will argue that it’s a gift to Hollywood and legacy copyright interests — and there’s an argument that that’s the case. But the reality is that this proposal is so bad that it will end up doing massive harm to everyone. It will clearly harm independent creators and the innovative platforms that they rely on. And, because those platforms have become so important to even the legacy entertainment industry, it will harm them too. And, worst of all, it will harm the public greatly. It’s difficult to see how this proposal will benefit anyone, other than maybe some lawyers.

…

So the EU Commission has taken the exact wrong approach. It’s one that’s almost entirely about looking backwards and “protecting” old ways of doing business, rather than looking forward, and looking at what benefits the public, creators and innovators the most. If this proposal actually gets traction, it will be a complete disaster for the EU innovative community. Hopefully, Europeans speak out, vocally, about what a complete disaster this would be.

So, according to Masnick not even business interests will benefit.

Exceeding the sensitivity of skin with a graphene elastomer

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A Jan. 14, 2016 news item on Nanowerk announces the latest in ‘sensitive’ skin,

A new sponge-like material, discovered by Monash [Monash University in Australia] researchers, could have diverse and valuable real-life applications. The new elastomer could be used to create soft, tactile robots to help care for elderly people, perform remote surgical procedures or build highly sensitive prosthetic hands.

Graphene-based cellular elastomer, or G-elastomer, is highly sensitive to pressure and vibrations. Unlike other viscoelastic substances such as polyurethane foam or rubber, G-elastomer bounces back extremely quickly under pressure, despite its exceptionally soft nature. This unique, dynamic response has never been found in existing soft materials, and has excited and intrigued researchers Professor Dan Li and Dr Ling Qiu from the Monash Centre for Atomically Thin Materials (MCATM).

A Jan. 14, 2016 Monash University media release, which originated the news item, offers some insights from the researchers,

According to Dr Qiu, “This graphene elastomer is a flexible, ultra-light material which can detect pressures and vibrations across a broad bandwidth of frequencies. It far exceeds the response range of our skin, and it also has a very fast response time, much faster than conventional polymer elastomer.

“Although we often take it for granted, the pressure sensors in our skin allow us to do things like hold a cup without dropping it, crushing it, or spilling the contents. The sensitivity and response time of G-elastomer could allow a prosthetic hand or a robot to be even more dexterous than a human, while the flexibility could allow us to create next generation flexible electronic devices,” he said.

Professor Li, a director of MCATM, said, ‘Although we are still in the early stages of discovering graphene’s potential, this research is an excellent breakthrough. What we do know is that graphene could have a huge impact on Australia’s economy, both from a resources and innovation perspective, and we’re aiming to be at the forefront of that research and development.’

Dr Qiu’s research has been published in the latest edition of the prestigious journal Advanced Materials and is protected by a suite of patents.

Are they trying to protect the work from competition or wholesale theft of their work?

After all, the idea behind patents and copyrights was to encourage innovation and competition by ensuring that inventors and creators would benefit from their work. An example that comes to mind is the Xerox company which for many years had a monopoly on photocopy machines by virtue of their patent. Once the patent ran out (patents and copyrights were originally intended to be in place for finite time periods) and Xerox had made much, much money, competitors were free to create and market their own photocopy machines, which they did quite promptly. Since those days, companies have worked to extend patent and copyright time periods in efforts to stifle competition.

Getting back to Monash, I do hope the researchers are able to benefit from their work and wish them well. I also hope that they enjoy plenty of healthy competition spurring them onto greater innovation.

Here’s a link to and a citation for their paper,

Ultrafast Dynamic Piezoresistive Response of Graphene-Based Cellular Elastomers by Ling Qiu, M. Bulut Coskun, Yue Tang, Jefferson Z. Liu, Tuncay Alan, Jie Ding, Van-Tan Truong, and Dan Li. Advanced Materials Volume 28, Issue 1 January 6, 2016Pages 194–200 DOI: 10.1002/adma.201503957 First published: 2 November 2015

This paper appears to be open access.

Copyright and patent protections and human rights

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The United Nations (UN) and cultural rights don’t immediately leap to mind when the subjects of copyright and patents are discussed. A Mar. 13, 2015 posting by Tim Cushing on Techdirt and an Oct. 14, 2015 posting by Glyn Moody also on Techdirt explain the connection in the person of Farida Shaheed, the UN Special Rapporteur on cultural rights and the author of two UN reports one on copyright and one on patents.

From the Mar. 13, 2015 posting by Tim Cushing,

… Farida Shaheed, has just delivered a less-than-complimentary report on copyright to the UN’s Human Rights Council. Shaheed’s report actually examines where copyright meshes with arts and science — the two areas it’s supposed to support — and finds it runs contrary to the rosy image of incentivized creation perpetuated by the MPAAs and RIAAs of the world.

Shaheed said a “widely shared concern stems from the tendency for copyright protection to be strengthened with little consideration to human rights issues.” This is illustrated by trade negotiations conducted in secrecy, and with the participation of corporate entities, she said.

She stressed the fact that one of the key points of her report is that intellectual property rights are not human rights. “This equation is false and misleading,” she said.

The last statement fires shots over the bows of “moral rights” purveyors, as well as those who view infringement as a moral issue, rather than just a legal one.

Shaheed also points out that the protections being installed around the world at the behest of incumbent industries are not necessarily reflective of creators’ desires. …

Glyn Moody’s Oct. 14, 2015 posting features Shaheed’s latest report on patents,

… As the summary to her report puts it:

There is no human right to patent protection. The right to protection of moral and material interests cannot be used to defend patent laws that inadequately respect the right to participate in cultural life, to enjoy the benefits of scientific progress and its applications, to scientific freedoms and the right to food and health and the rights of indigenous peoples and local communities.

Patents, when properly structured, may expand the options and well-being of all people by making new possibilities available. Yet, they also give patent-holders the power to deny access to others, thereby limiting or denying the public’s right of participation to science and culture. The human rights perspective demands that patents do not extend so far as to interfere with individuals’ dignity and well-being. Where patent rights and human rights are in conflict, human rights must prevail.

The report touches on many issues previously discussed here on Techdirt. For example, how pharmaceutical patents limit access to medicines by those unable to afford the high prices monopolies allow — a particularly hot topic in the light of TPP’s rules on data exclusivity for biologics. The impact of patents on seed independence is considered, and there is a warning about corporate sovereignty chapters in trade agreements, and the chilling effects they can have on the regulatory function of states and their ability to legislate in the public interest — for example, with patent laws.

I have two Canadian examples for data exclusivity and corporate sovereignty issues, both from Techdirt. There’s an Oct. 19, 2015 posting by Glyn Moody featuring a recent Health Canada move to threaten a researcher into suppressing information from human clinical trials,

… one of the final sticking points of the TPP negotiations [Trans Pacific Partnership] was the issue of data exclusivity for the class of drugs known as biologics. We’ve pointed out that the very idea of giving any monopoly on what amounts to facts is fundamentally anti-science, but that’s a rather abstract way of looking at it. A recent case in Canada makes plain what data exclusivity means in practice. As reported by CBC [Canadian Broadcasting Corporation] News, it concerns unpublished clinical trial data about a popular morning sickness drug:

Dr. Navindra Persaud has been fighting for four years to get access to thousands of pages of drug industry documents being held by Health Canada.

He finally received the material a few weeks ago, but now he’s being prevented from revealing what he has discovered.

That’s because Health Canada required him to sign a confidentiality agreement, and has threatened him with legal action if he breaks it.

The clinical trials data is so secret that he’s been told that he must destroy the documents once he’s read them, and notify Health Canada in writing that he has done so….

For those who aren’t familiar with it, the Trans Pacific Partnership is a proposed trade agreement including 12 countries (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam) from the Pacific Rim. If all the countries sign on (it looks as if they will; Canada’s new Prime Minister as of Oct. 19, 2015 seems to be in favour of the agreement although he has yet to make a definitive statement), the TPP will represent a trading block that is almost double the size of the European Union.

An Oct. 8, 2015 posting by Mike Masnick provides a description of corporate sovereignty and of the Eli Lilly suit against the Canadian government.

We’ve pointed out a few times in the past that while everyone refers to the Trans Pacific Partnership (TPP) agreement as a “free trade” agreement, the reality is that there’s very little in there that’s actually about free trade. If it were truly a free trade agreement, then there would be plenty of reasons to support it. But the details show it’s not, and yet, time and time again, we see people supporting the TPP because “well, free trade is good.” …
… it’s that “harmonizing regulatory regimes” thing where the real nastiness lies, and where you quickly discover that most of the key factors in the TPP are not at all about free trade, but the opposite. It’s about as protectionist as can be. That’s mainly because of the really nasty corprorate sovereignty clauses in the agreement (which are officially called “investor state dispute settlement” or ISDS in an attempt to make it sound so boring you’ll stop paying attention). Those clauses basically allow large incumbents to force the laws of countries to change to their will. Companies who feel that some country’s regulation somehow takes away “expected profits” can convene a tribunal, and force a country to change its laws. Yes, technically a tribunal can only issue monetary sanctions against a country, but countries who wish to avoid such monetary payments will change their laws.

Remember how Eli Lilly is demanding $500 million from Canada after Canada rejected some Eli Lilly patents, noting that the new compound didn’t actually do anything new and useful? Eli Lilly claims that using such a standard to reject patents unfairly attacks its expected future profits, and thus it can demand $500 million from Canadian taxpayers. Now, imagine that on all sorts of other systems.

Cultural rights, human rights, corporate rights. It would seem that corporate rights are going to run counter to human rights, if nothing else.

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

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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

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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

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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

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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

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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

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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).