Paracopyright
Encyclopedia
Paracopyright is a term that refers to an umbrella of legal protections above and beyond traditional copyright
. It is also sometimes called "pseudocopyright" or "metacopyright". The most often cited example is "legal protection for technical measures" from the 1996 WIPO
Internet treaties. Paracopyright provisions in these treaties are not about the term or scope of copyright, but instead are about providing legal protections for the technologies that may be used by copyright holders.
Paracopyrights afford legal protection to technologies that claim to be used to protect copyrights, but that are ineffective in that goal. A technical measure can not stop a technically sophisticated person who wishes to infringe copyright. To use the "digital locks" analogy, there is no need to "pick the lock" as the keys necessary to decode the content are embedded within authorized access technology. Both the locked content and the technology containing the key are commercially available to an infringer. Once a single person decodes a technical measure, the decoded content can be made available to others in the same way as if the technical measure never existed.
The effect of these technical measures are to impose specific contractual license agreements on those conforming to copyright law. As a concept, therefore, paracopyrights are perhaps better understood as a part of contract law and not copyright law. Unfortunately, important regulations regarding consumer protection and the "freedom to contract" are not imported directly into paracopyright laws, potentially creating imbalances in the law and harmful unintended consequence
s.
Copyright is traditionally understood as a statutorily defined bundle of exclusive rights provided to copyright holders. An infringement of copyright takes place when someone exercises one or more of the copyright holder’s exclusive rights without his or her permission. Anti-circumvention and anti-device provisions do not fit under this paradigm of a bundle of exclusive rights. On one hand, a copyright owner has the exclusive right to copy his or her work, and that exclusive right is infringed when someone else copies the work without permission. It is quite another story, however, to think about copyright holders having the exclusive right to circumvent TPMs (Technical Protection Measure) that they apply to their works, and the exclusive right to make and distribute devices that enable or facilitate circumvention of TPMs. Even assuming that this problem could be overcome, attempting to force anti-circumvention and anti-device provisions to fit the mold of the bundle of rights
paradigm seems to necessitate adding a number of related rights to the bundle, including the exclusive right to apply a TPM to a copyright work.
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
. It is also sometimes called "pseudocopyright" or "metacopyright". The most often cited example is "legal protection for technical measures" from the 1996 WIPO
World Intellectual Property Organization
The World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
Internet treaties. Paracopyright provisions in these treaties are not about the term or scope of copyright, but instead are about providing legal protections for the technologies that may be used by copyright holders.
Paracopyrights afford legal protection to technologies that claim to be used to protect copyrights, but that are ineffective in that goal. A technical measure can not stop a technically sophisticated person who wishes to infringe copyright. To use the "digital locks" analogy, there is no need to "pick the lock" as the keys necessary to decode the content are embedded within authorized access technology. Both the locked content and the technology containing the key are commercially available to an infringer. Once a single person decodes a technical measure, the decoded content can be made available to others in the same way as if the technical measure never existed.
The effect of these technical measures are to impose specific contractual license agreements on those conforming to copyright law. As a concept, therefore, paracopyrights are perhaps better understood as a part of contract law and not copyright law. Unfortunately, important regulations regarding consumer protection and the "freedom to contract" are not imported directly into paracopyright laws, potentially creating imbalances in the law and harmful unintended consequence
Unintended consequence
In the social sciences, unintended consequences are outcomes that are not the outcomes intended by a purposeful action. The concept has long existed but was named and popularised in the 20th century by American sociologist Robert K. Merton...
s.
Copyright is traditionally understood as a statutorily defined bundle of exclusive rights provided to copyright holders. An infringement of copyright takes place when someone exercises one or more of the copyright holder’s exclusive rights without his or her permission. Anti-circumvention and anti-device provisions do not fit under this paradigm of a bundle of exclusive rights. On one hand, a copyright owner has the exclusive right to copy his or her work, and that exclusive right is infringed when someone else copies the work without permission. It is quite another story, however, to think about copyright holders having the exclusive right to circumvent TPMs (Technical Protection Measure) that they apply to their works, and the exclusive right to make and distribute devices that enable or facilitate circumvention of TPMs. Even assuming that this problem could be overcome, attempting to force anti-circumvention and anti-device provisions to fit the mold of the bundle of rights
Bundle of Rights
The bundle of rights is a common way to explain the complexities of property ownership. Teachers often use this concept as a way to organize confusing and sometimes contradictory data about real estate....
paradigm seems to necessitate adding a number of related rights to the bundle, including the exclusive right to apply a TPM to a copyright work.
External links
Examples where the term has been used- The Word Spy
- Michael Geist, In the Public Interest: The Future of Canadian Copyright Law, Chapter 4: Constitutional Jurisdiction over Paracopyright Laws - Jeremy F. deBeer http://www.irwinlaw.com/books.cfm?pub_id=120&series_id=3
- Peter Jaszi, Intellectual Property Legislative Update: Copyright, Paracopyright, and Pseudo-Copyright, May 1998 http://www.arl.org/arl/proceedings/132/luncheon/jaszi.html
- David Nimmer, “Puzzles of the Digital Millennium Copyright Act” (1998-1999) 46 J. Copyr Soc’y U.S.A. 401 at 405
- Michael J. Remington, “The Ever-whirling Cycle of Change: Copyright and Cyberspace” (2002) 3:2 N.C. J.L. & Tech. 213 at 238-241
- Ian KerrIan KerrIan R. Kerr is a Canadian academic who is recognized as an international expert in emerging law and technology issues. He holds a Canada Research Chair in Ethics, Law, and Technology at the University of Ottawa...
, "To observe and protect", How Digital Rights Management Systems Threaten Privacy and What Policy Makers Should Do About It", forthcoming in Intellectual Property and Information Wealth: Copyright and Related Rights (vol. 1), Edited by Peter Yu, Praeger Publishers, 2007.