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Replace copyright with two new rights: privacyright and usageRight.

Comment 19th July 2010

Copyright in the digital domain should be replaced by two new rights which I call privacyright and usageright.  Copyright for analogue intellectual property should be left as it is.

If Beth holds usageRight over a piece of information then any individual or organisation that wished to display that information (using an output device such as a speaker or a monitor) would need to have Beth's permission to do so.  They would also need to have Beth's permission to use this information to perform a calculation (this covers running a piece of software).  Certain fair usage provisions might be considered appropriate here.

If Albert holds privacyright over some data then any public or private individual or organisation who wished to hold this data, in a dataset and in a plain text format (i.e in a readable form) would have to have his permission to do so.  A dataset would be considered to be 'vunerable' (a new legal term) if any individual was able to read the majority of the datset using crytographic keys in their possession.  If Albert's data was held in a large dataset which is vulnerable then it would be considered to be held in plain text.  If Albert's data could be read by anyone with access to the dataset then it would also be considered to be in plain text.  Exemptions might be considered for the temporary storage of information.  Also some public bodies such as MI5, MI6 and the police might require partial exemptions from privacyright.

Why does this matter?

Copyright does not work for the digital world.

The economic and social value of digital property comes from its display (think video, photo or audio) or its usage in a calculation (think database, software or index).  Usageright respects this economic and social reality.  Copyright also attempts to control the copying of information, an act which, in the digital age, has no social or economic significance.

The government rightly has the power to require the provision of keys so that it can read any encrypted data.  Government needs this power for the prevention of terrorism and serious fraud.  However, to use this power in an attempt to enforce copyright would be massively disproportionate.

Given the above, it is impossible to devise a scheme that allows you to detect the copying of a digital work even with hardware access to an individual's computer (due to the existence of strong cryptographic algorithms).  It is possible to detect the display of a digital work or its usage in a calculation (as the digital work must be in an unencrypted form for any usage).  The mathematical reality of enforcement is that, within the digital world, usageright can be enforced but copyright cannot.

The distribution of information in digital systems involves the creation of copies.  These copies have no economic value by themselves.  Distributers may need to make many copies of a work to effectively distribute it.  Copyright allows rights holders to interfere with the manner in which the copies are distributed and thus grossly distort the market.  Usageright recognises that distributers must be free to engage in the free trade of intellectual property.

The concept of privacy for digital works also needs rethinking.

Large databases of private information are incredibly useful economically and socially.  However, holding large amounts of unencrypted information risks criminal or corrupt exploitation on a scale previously unimaginable.

Any individual may be subject to bribary or blackmail if they hold the keys to a sufficiently valuable dataset.  This is why no individual, should be able to access any substantial amount of a given dataset (if this dataset contains private information).

If a dataset is protected by strong encryption and no individual by themselves would be able to decrypt a substantial portion of the dataset then there is only a very marginal risk of significant criminal or corrupt exploitation of the database.  Otherwise, it is up to the owners of the privacyright to decide if security provisions are sufficient to protect their data.

Privacyright would give people the power to prevent their information being held in a form that criminals or corrupt individuals could exploit whilst allowing properly encrypted databases to be run for economic and social benefit.


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