Australia

Contribution from Janet Hawtin:

I can see that the DMCA basically divides the world into people who want to protect existing patents and business models, and people who want to protect the right to be able to create, discuss innovate and even potentially generate new patentable material. The DMCA uses means to protect existing copyright which are very expensive of rights and freedoms of others.

The DMCA compromises fair use / fair dealing in the following ways:

Fair use is now an add on to DMCA in many cases requiring people to apply for exemptions to each new wave of treaty agreements. It also makes fair use a nonsense because that access is mediated by technological protection measures which err on the side of the manufacturer and have no capacity to negotiate fair use, particularly for special use cases.

The DMCA is effectively outsourcing the private protection of copyrights to governments, effectively using governments to legislate and take action against their own people and their own interests, at the same time as shifting the jurisdiction of copyright infringement for such things as satire or parody into an international trade court rather than within a country's own system.

This franchising of the legwork, and overreaching of the decision making seems to be an unreasonable concession to make to a team of corporate lawyers who only have their own company's best interests to serve. How do the EU legal communities feel about having the licence of a piece of software which may be varied by the company at will, be the trumping legislation over any local legal considerations, how do you build a system of precedent on shifting licences.

The process of developing the treaty as a part of a series of trade negotiations has emphasised commercial advantage over legal 'niceties' including responsible consideration of the legal impacts on consumer rights, privacy, right to comment, right to develop competing products. The process of making a global change to copyright law as a process of commercial advantage negotiation can only result in monopolistic solutions as the strongest party pushes their advantage home, rather than through consideration of longer term values and representation of interests which are not present at a trade negotiation table but which have dramatic implication outside of that context. Libraries, academics, students, inventors, folk with special access needs, developers, open source community, artists, authors, these people are the heart of our cultural development and are sidelined as exemptions.

The EU has recently been working with Microsoft regarding anti-trust issues. Microsoft is a primary beneficiary of DMCA. Sony and Microsoft already abuse their new right to have TPM on their material by including malware in their products. Microsoft recently backed down on a threat to use WGA to shut down Windows on all computers which did not upgrade by a set date. They are now posting a set of principles which purport to protect the community from their predatory action. At the same time as progressing the DMCA which makes it legal to be more predatory. I don't understand why a strong alliance such as the EU is happy to waive its rights to control predatory activity of companies like Sony and Microsoft and to require people to rely on MS 'principles' to behave in the interests of the wider poplation. If the legal framework cannot resist this lobby to represent the wider interests of people then what point is a platitude from Microsoft. Open source technologies nd communities are of course excluded from their principle statements.

Given that the system operates on a ratchet system, ie no softening of protection in successive meetings, the effect is to progressively atrophy the potential to innovate in the interests of those who currently have patents and see no reason to change their business models.

Outlawing the development of 'circumvention tools' because someone may use them for an illegal purpose is an across the board threat to developers of any technology that facilitates transparency, open standards, flexible use of information.

The internet has potential. Sharing between people is now very easy. This does mean people have to think differently about how to share information and how to make a successful business in a world which does not need a broadcast intermediary between people who wish to interact. Criminalising those qualities of the internet which make it a challenge to broadcast businesses is locking the potential of these technologies down.

DMCA is not future proof. The EU is probably the heartland of people who have existing patents, however protecting those by creating laws which criminalise further innovation cannot be anyone's idea of a wise legacy.

If it is true that the Adelphi Charter and A2K Treaty are to be really and tangibly adopted. Then please make this overtly clear to the rest of the world. It would mean a great deal to people like me in other nations who are currently negotiating these issues.

Both the Charter and the Treaty are at least documents which put the rights of future generations to create as core values. It is a sad state of affairs to have an international copyright system which places such value in existing patents that it can only see to protect them by hocking the access rights of future generations.