Standard disclaimer: I am not a lawyer.
"...the bookseller acquires by an act a manuscript; the ministry, by a permission, authorizes the publication of this manuscript, and guarantees to the purchaser the peace of his possession. What is there that could be contrary to the general interest?"
Denis Diderot, "Lettre sur le Commerce de la librarie", 1763
This quote is from the dialogue which surrounded the development of the Statute of Anne. I have sourced it from a wonderful site by Karl-Erik Tallmo which includes scans of the original document together with transcripts of the text and the associated negotiations. The site is the background work for a forthcoming book: The History of Copyright: A Critical Overview With Source Texts in Five Languages
I feel this quote captures what is essentially amiss with emerging trends in copyright law. Both the content of the Digital Millenium Copyright Act (DMCA) and the coercion applied to nations to adopt the model as a prerequisite of trade with the United States are at odds with both the individual's right to have 'peace of their possessions' and the due process of negotiation of law within nations.
I lobbied against acceptance of the DMCA when it was being transacted in Australia. It is easy to find my writing on the issue due to my clumsy mispelling of 'peace of our posessions' in those writings. Digital rights management (DRM) and technological protection measures(TPM) are both an obstacle to the purchaser of material and also a significant legal threat to those whose work it is to interface with technologies in order to innovate or to ensure access to the contained information.
Canada is currently facing the same process.
Michael Geist is a reliable writer on the Canadian issues.
The current negotiations in Canada have seen an interesting strategy deployed by the pro-DMCA lobbyists:
"Meanwhile, the CRIA is preparing a grassroots campaign in support of new copyright laws, even claiming that the current rules are costing jobs to truck drivers delivering CDs and DVDs."
I find it interesting that in effect the lobby groups promoting the DMCA are all in the business of delivery and packaging and that it is the ability for the artists and writers to publish for themselves which undoes their reliance on industrial models of broadcasting their works.
It is interesting that this connection is made by the lobby groups themselves and that they are overtly seeing themselves as protecting the traditional mode of distribution rather than the act of creation or the livelihood of the creators. I feel that this is because creators using post industrial means of distribution are in actual fact the real threat to these industries and 'piracy' is merely a way to dramatise the issue in favour of the industrial mode of production.
Copyright law was crafted specifically for the emergence of the printing press. It is time that the law was reconsidered in light of new creative and publishing realities including 'living' creative works in ongoing development by fluid communities rather than individuals, and distribution methods which might involve investment by creators and subscribers, but with very little brokering or intermediate infrastructure cost.
Accessibility and functional use of information for purposes including health, ecology, agriculture, cooking, crafts, cultural expression and dialogue all need to be engineered into the emerging models so that we do not get caught in 'property' metaphors more suited to industrial publishing and distribution effectively damaging our ability to move forward as a global 'knowledge society'.
Copyright as it stands is a single point of value with a distributed cost. I expect that emerging creative practice and publishing will need models which are better able to support distributed and mutable points of value which do not effect unreasonable social costs such as reduced access to medical health, risk to viability of agricultural species, inability to make effective use of what we know about our planet and its ecology and reduced ability to build on our creative heritage and shared expression.
An interesting development is occuring in Australia where some indigenous Aboriginal Australian communities are choosing to manage use of their cultural heritage through contract law as this enables them to manage relationships and appropriate use of the concepts and creative works while also making it possible for the communities themselves to build on their heritage as a community.
Another interesting article is The Law has colour An essay about the challenges of legal .v. technical bits.