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Footnote 1: Copyright

The issues surrounding DRM all stem from the issue of copyright. Put simply, copyright refers to the principle that in creating something new the creator has performed work that is valuable to others. In the UK copyright is a legal protection that allows the creator of a copyright work to control the right to make copies of the original work and usually, to obtain payment for transferring that right to another party. Not to be confused with patents which must be applied for, copyright, at least in the UK, is an automatic right, although it is necessary to be able to prove creative ownership if a dispute arises. However, like patents, the principle of novelty is crucial.

Copyright law applies to works of literary (including computer programs), recorded (audio, video and film), dramatic, musical, artistic, and typographical nature. The earliest instance of copyright law in England is the Statute of Anne from 1710, an act that was passed to protect the authors and printers of books against copies being made without their permission.

Perhaps inspired by the ideas of Richard Stallman, the open source and free software communities decided to adapt the copyright system to further their principles: firstly by using the established idea of copyright to write copyrights that are specifically designed to control usage, rather than payment, and secondly by introducing the copyleft concept. A copyleft licence attempts to ensure that free software remains free by licensing every person who receives a copy of a work permission to reproduce, adapt or distribute the work, with the requirement that any resulting copies or adaptations are also bound by the same copyleft licensing scheme and are distributed with a copy of the original licence.

Copyright law varies from country to country. Richard Stallman recently published a statement where he refers to the US Constitution to support his claim that USA copyrights were not originally intended to, and should not, protect the rights of the copyright holder, but instead should protect the public from predatory behaviour by the copyright holder and from loss of freedom. He argues that law is established by government on behalf of the people and therefore it is the interest of the general public that is of primary concern. Stallman says that, on behalf of the public and for a fixed length of time, the government surrenders some limited degree of the public's freedom to a copyright holder in exchange for the copyright holder's creative efforts. Whether you accept the basis of his arguments or not, he is right to say that American copyright law in the form of the DMCA is gradually becoming more restrictive and it is disturbing to see this law being used to set a precedent for new copyright legislation around the world.

Footnote 2: Fair use

The term fair use is bandied about a lot without, it seems, a very clear idea of its meaning. Much of the time it is interpreted by individual commentators as meaning "whatever seems fair to them" including making multiple copies of a digital work for their own convenience. The doctrine of fair use actually originates in American copyright law and is defined as using a partial copy for the purposes of criticism, comment, news reporting, teaching, scholarship, research and other similar uses. US copyright law also talks about how much of a work may be reproduced for these purposes. Although this is not precisely quantified, it does clearly refer to using a portion and not the entire work.

UK law uses a similar term and concept, known as 'fair dealing'.

In some countries, such as Canada, it is not illegal to make audio copies for private use. In America the Audio Home Recording Act of 1992 – the, itself controversial, forerunner of the DMCA – does allow consumers to make audio copies for personal use, but only if the copy is made using an analogue or digital device that is specifically designed solely for the purpose of making audio recordings. Under the terms of this act, copies made using CD-R and other recording drives attached to a computer, are not legal.

The Digital Millennium Copyright Act (DMCA) has reduced the scope of fair use even further than was previously defined.

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