Its unlikely to be the impact which the IP Enforcement Agenda is having on the poorest people in the world. Its unlikely because its apparent from both the latest leaked text of ACTA and the preceding leaked text that no consideration is being given to threat posed to the poorest people in the world by ACTA. The likely impact of the threat on the poorest people in the world is already indicated by the instantiation of an expansive “enforcement” agenda. I’ve pointed to some of the obvious consequences in a working paper hosted by the Program on Information Justice and Intellectual Property at Washington College of Law.

We set ourselves the task of explaining in a single short article, to an audience not familiar with either copyright nor  the detail of digital technology what has changed, how and what that means for the future of creativity. We’d appreciate your comments on this blog on how well we succeeded.

Format shifting, for example from a CD which you own, to a MP3 format on your mobile phone involves making a copy. The 1978 Copyright Act gives a copyright holder a monopoly on making copies, no-one else can make a copy without permission, unless there is an exception.

Is there an exception that allows format shifting? Section 12(1)(a) of the Copyright Act allows copying for “personal or private use” of a literary or musical work. A CD contains literary works i.e. the lyrics of a song, and musical works. The musical work is not the same as the recording of the specific performance, the musical work is the arrangment of the notes that played. A CD also contains a sound recording. When Whitney Houston made a sound recording of “I will always love you” she, or more likely the record company, owned the copyright in the sound recording but they had to pay Dolly Parton and her record compay for the music and lyrics. Section 17 deals with exceptions for sound recordings, and although it adopts the exceptions from section 12 (1) (b) ,(c), (2), (3), (4), (5), (12) amd (13).

Its important to note that although the law doesn’t give an exception to format shift there is a way to fix this without changing the law. Record companies could simply give permission to the purchaser’s of CD’s to make an MP3 copy because that is what their consumers want. They have that legal power, they choose not to use it. Not everyone is happy with this state of affairs, consumers have started a Facebook Group; Stop RISA.

I have been asked what people can do about the 1978 Copyright Act. The African Commons Project has a petition for a consultative development focused copyright review.

Your can sign it. You can leave a response on the site that the law must be changed to include the right of consumers to format shift when they have paid for a work on one medium.

Full disclosure: I am on the board of the African Commons Project.

Edited to add: Some comments on the issue suggest confusion. Here are a few pointers to clear up confusion.

• Section 19B of the Copyright Act allows a lawful possessor of a computer program to make back up copies. So it is lawful to back up a computer program for which you’ve paid.
• South Africa has a series of narrow exceptions and not a broad limitation such as fair use. I won’t elaborate on the problems with these exceptions here, the Report of the Open Review of the South African Copyright Act does so extensively.
• Some people have raised the possibility that regulation 2 from the Copyright Regulations may make it lawful to format shift. The regulation reads

“Permitted reproduction
The reproduction of a work in terms of section 13 of the Act shall be
permitted- (a) except where otherwise provided, if not more than one copy of a
reasonable portion of the work is made, having regard to the totality
and meaning of the work;  and
(b) if the cumulative effect of the reproductions does not conflict with the
normal exploitation of the work to the unreasonable prejudice of the
legal interest and residuary rights of the author.”

So what does that mean? Thats the problem, it is by no means clear what ‘reasonable portion’ means, nor ‘normal exploitation’ nor “unreasonable prejudice’. What is clear is that the radically different interpretations, those by the recording industry, those by users and consumer activists can all make claims about what this means, and there is no judicial precedent to guide

What these three points show is that: that there are big problems with unclear provisions in copyright legislation so that the Copyright Act and regulations is hopeless as a guide to ordinary South Africans.

The member of communities can become, lets say passionate about which licence is appropriate. Thats understandable because peer producers are passionate about sharing, and want to find the best way for that community to share.

So how can communities agree on what open licence is appropriate. p2pu has decided to share the community process we went through to choose an open licence, not because we think everyone has to do it that way but because by sharing our story we hope to help and inspire others. You can read about the full process or a blogpost.

It seems that a worthwhile use of the day then is to reflect on the conventional narratives which justify  “intellectual property”. When I first encountered ip it was presented as a rather arcane technical subject, of interest only to specialist practitioners. What littel justification was advanced is more or less the same set of justifications advanced today, but too often there is an arguement by assumption, that it is a foregone conclusion that intellectual property is a good thing, and that  the more  “ip” the better. This is often couched in terms of pragmatism, with a claim that it is value free. John Maynard Keynes had the measure of such claims.

“The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist.”

Supreme Court of Appeal Deputy President Loius Harms who is considered the senior judicial expert on intellectual property in the judiciary took an unusual step for a sitting judge, he wrote an article in a law journal describing the draft legislation as flawed.Other criticisms have been more polemical. Dr Owen Dean described the Bill as an ‘abomination’ in an article written for the Mail and Guardian in July 2009 (link not working due to technical problems at M & G).

Possibly and a consequence of the reaction to the draft Bill the Presidency appointed an independent consultancy to examine the draft Bill and its implications. The report of the consultance isn’t publicly available, but respondents to the research conducted by the consultancy were universally critical of drafte Bill. Despite this The Bill is largely unchanged from the draft Bill circulated for comment by the Department of Trade and Industry in May 2008. The Parliamentary Portfolio Committe on Trade and Industry will hold public hearings on the Bill on 11 and 12 May 2010.

Criticism of the Bill hasn’t abated, a representative of DALRO, a collecting society, claims that the Bill will put black authors who retell traditional stories out of business.

What is the debate about? Criticism of the TK Bill is actually taking place on three  very different levels.

One level are concerns about the practicalities of the Bill, how it changes current legislation, how indigenous communities are constituted by the Bill, what constitutes indigenous knowledge, how the mechanisms of the Bill will operate. These shouldn’t be dismissed as details. What lawyers know, and re-learn every day is that intentions alone are never enough, legal mechanisms whether legislation or contracts founder on poor wording, ambiguity and lack of clarity. These concerns aren’t ideological,  they are just as likely to stem from those who support the objectives of the Bill in principle

On another level there is criticism of the Bill from a anthropological and community development perspective. These concerns are about how the Bill consitutes traditional knowledge as a commodity, rather than as a constitutive feature of indigenous communities, makes knowledge a thing rather than recognising how it is embedded in relationships. The particular form of this Bill also raises concerns about the ways in which the State deprives communities of agency, the opportunities for rent seeking by self appointed community leaders, and the potentially stifling  of local creativity.

A rather different view is the attack on the idea of traditional knowledge being granted legal recognition and protection. The proponent of this view seem concerned that the idea of collective ownership of knowledge will subvert their view of intellectual property. In their view knowledge can be viewed as property which can be owned by an individual or (more likely) a corporation, and as a commodity, traded, rented out and the like. Since they generally also represent those corporations that have amassed large inventories of copyrights, trademarks and designs they are also concerned that traditional knowledge will subject them to claims of ownership of the same material.

The cause of the debate is not often considered. Some developing countries have campaigned for years for an international legal regimes which recognises traditional knowledge. Developing countries generally support sui generis laws for traditional knowledge, but developed countries have adamantly refused to recognise traditional knowledge as a form of intellectual property. One response to this is to use the existing species of copyright, trademark and design (often referred to collectively if erroneously as “intellectual property”) and constitute a traditional knolwedge copyright, traditional knowledge trademark and a traditional knowledge design. This is the approach taken by the South African Bill. In other words its an attempt to hack the existing international IP regime.

But will it work?

It may not have occurred to the early adopters of SOMA, Mountain View, and Watertown but the issue of security will likely be the first concern of anyone from Mzansi, and certainly for anyone from iGoli. Do I really want to signal that I’ve just left home, which I have conveniently tagged on an online map?  Why not just type  “please rob me”?

That is a concern that privacy advocate have raised with a site called Please Rob Me
which used to collect and display  tweets generated by geo-location services in which people comprimised their own privacy and possibly security. Point made they have now ceased doing that (perhaps the lawyers warned of potential liability if one the people featured was robbed). Its a salutory warning, but it mustn’t bet taken as reason to reject these services, but rather that two aspects of them need to be refined; the ability of the user to easily control what information he or she gives out and a new set of social skills.

Together these may actually enhance the security of South Africans who use them, if an app permits the automatic sending of location information to only one or two people this would be a good way of knowing where a loved one is, especially if thta person works in an unsafe area, or is travelling late at night. Someone could also use it to tell trusted friends that one has reached home safely after a night out. Perhaps an app could even be set to to alert someone if a person doesn’t arrive home by a certain time. The key is that user’s can control who sees what easily and intuitively.

The other issue is an evolving set of social skills for using the technology. There is already too much information, I don’t need or want a step by step live feed all my friends movements every day. Of course there will be some of that in the beggining as people play with the apps and figure out how to use them. One obvious guide up front is not to signal the location of friends and colleagues in a way that might comprimise their safety, and privacy. This calls for a big dollop of common sense. Do I signal that I am meeting colleagues for lunch in Bree Street? Why not? Do I signalt that a female friend has set off home from a party on her own in her 1985 VW Golf  at 11:30 PM? You tell me.

We will probably see a lot of journalistic silliness around the privacy issues raised by geolocation since it has all the elements for a thouroughly enjoyable moral panic; unknown technology applied to the quotidien realities of people’s lives. Sooner or later someone will signal that she is in a bar with someone else who swears that he was working late.There will be litigation as some point. Employees dismissed for being found not being where they should, partners and spouses for being where they shouldn’t. What legal responsibility does a person have to safeguard information about another’s location? Can someone be liable for signalling someone else’s location?

Ask a lawyer and she will tell you “it depends”. It will depend on a lot of things. What was the harm suffered? What is the relationship between the persons? Is there a duty of care? How foreseable was the harm? We don’t know how this will play out but its going to be interesting.

And test our assumptions about privacy.