Should digital be different?
Professor Tana Pistorius and I may not see eye to eye on all things (our stance on Hellkom and the Laugh it off case, for example), but I thoroughly enjoyed her inaugural lecture at Unisa on Tuesday night. In her address entitled ‘Digital copyright, exceptions and technological measures: Should digital be different?’ Professor Pistorius spoke about the problems inherent in many of the tools that control our access to copyrighted content on the internet and digital platforms. The main problem is that technological protection measures (like Digital Rights Management) often don’t allow for the exceptions and limitations on copyright that enable us to excercise our fair use/dealing rights. Making copies of a book for personal research purposes, for example, or transporting texts into formats for the blind and differently-abled are actions that we take for granted in the analogue world, but make for huge problems when we want to do the same things on the Net.
Even if one had the technical expertise to circumvent those technologies in order to excercise our fair use/dealing rights, anti-circumvention laws often forbid us from doing so. According to Pistorius, our own Electronic Commerce and Transactions Act prevents unauthorised access to data in much the same way as the much-criticized United States Digital Millennium Copyright Act. Both prevent unauthorised access, ignoring legitimate claims that many people in our society have to access data freely.
But Pistorius said that the WIPO Copyright Treaty has directed countries to devise exceptions and limitations at the national level. Luxembourg, for example has forced publishers to gaurantee that exceptions to copyright controls are ensured in their code.
‘If, according to Lessig, code can be used to restrict access - it can also be used to ensure access,’ said Pistorius.