Call for a Conference on Fair Use on copyright works for the benefit of the disabled, librarians and educational institutions

Speech - Copyright Amendment Bill (Comm. Stage)
by Lim Kit Siang

(Dewan Rakyat, Monday): I am proposing four amendments to the Copyright Amendment Bill.

The first amendment proposes amend Section 4 (a) of the Bill, by deleting subsection (1) (iv) (e) which states "(e) the distribution of copies to the public by sale or other transfer of ownership" and substitute: "(e) the distribution of copies of the work to the public by sale, rental, lease, lending or by transmission,".

Firstly, I wish to ask why the phraseology of the this sub-section is being replaced by the term "transfer of ownership", when the concept of "transfer of ownership" is very inappropriate for the digital world as distinct from the physical world. Theft for instance implies interfering with the right to exclusivity and dispossession of property in the physical world but this is applicable with the digital situation, where theft need not imply denial of possession by the ownership.

This raises the question whether the drafters of this Bill had addressed the larger issues arising from the starkly divergent views as to the future of copyright and of fair use in the world of digital networked environments.

Cyber mavens like John Perry Barlow, co-founder of the Electronic Frontier Foundation, and Nicholas Negroponte, in his book "being digital", had been making end-of-copyright predictions.

In a widely-read article in WIRED in 1994, Barlow contends that in the emerging Virtual World, copyright protection is or soon will be impracticable. He asks, "If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it? How are we going to get paid for the work we do with our minds?"

Negroponte, in chapter 4 of his book entitled "The Bit Police", writes:

"Copyright law is totally out of date. It is a Gutenberg artifact. Since it is a reactive process, it will probably have to break down completely before it is corrected.

"Most people worry about copyright in terms of the ease of making copies. In the digital world, not only the ease is at issue, but also the fact that the digital copy is as perfect as the original and, with some fancy computing, even better. In the same way that bit strings can be error-corrected, a copy can be cleaned up, enhanced and have noise removed. The copy is perfect."

This is another illustration of what I had been emphasising in the debates in the three previous cyberbills, that we cannot use old laws or traditional legal concepts to deal with new technologies, as laws written for "atoms" and material things might not be applicable to "bits" or information that can be recorded and transferred on computers with the speed of light.

When enacting a law for multimedia intellectual property rights, MPs cannot be unmindful of these questions and propositions about the digital world, which, if they are correct, pose a serious - perhaps insoluble - problem for the protection of intellectual property.

Technological progress has now enabled information to be processed, stored, retrieved and communicated in whatever form it may take, whether oral, written or visual, unconstrained by distance, time and volume. All previous information can now be digitized (encoded in strings of 0s and 1s on an addressable medium) and can fairly easily be transmitted through computer networks.

Has the bill before the House taken into consideration this new phenomenon of copyright convergence?

Although copyright had evolved to deal with new technologies in the past, starting with the printing press and proceeding to embrace photography, sound recordings and broadcasting all of which posed some challenge for copyright law and theory, the digital networked environments has very little commonality with the previous technologies.

The most significant thing about digital data is that digital is a medium, which may upset the complex classification system that copyright laws have evolved for dealing with particular types of works. Copyright classifications have historically been quite medium-specific, which have had important implications for the extent of protection that the law would provide.

In digital form, all copyrighted works - pictures, sounds, text, music or movies - consist of strings of bits. In the binary or digital format, here is no physical distinction between Zaina Zainís latest hit, the text of my speech on the Copyright Amendment Bill, an image of the Mona Lisa or a digitised video recording of Sukom í98.

Furthermore, in digital form, works can be morer than one kind of work. Bits are just bits; they donít know and they donít care whether they are a literary work, a musical work, or a pictorial work until certain instructions execute that will render them as one kind of work or another. How the bits are processed will determine what kind of work will be perceived to exist.

Bits can also be processed so that viewers perceive them to be more than one kind of work at the same time, which raises interesting copyright questions if, for instance, the author of a pictorial work had not authorized its display as a musical work.

The digital medium also permits new works to be created for which no human author can readily be designated, such as the automatic generation technology which permits the automatic creation of databases. Programs that can automatically generate other works pose difficulties for copyright law principally because this law has always assumed that protected works will have human "authors" who were directly responsible for every word, line or note of which the work consists. How is our copyright law to deal with this problem?

My second amendment proposes a new Section 36 (6) for the Copyright Act, to read as follows:

Although Section 13(2) of the Copyright Act 1987 provides for fair use and fair dealing of copyright works, there should clearer provision giving wide scope to protect the interests of the disabled as suggested by this amendment, without having to seek the intervention of the Minister.

There should in fact be a wideranging study of how we can balance the interests of consumers and copyright owners, not only for the disabled only, but also to serve the public interest concerning fair use and fair dealing.

The Ministry should seriously consider a Conference on Fair Use (CONFU) of copyright works for the disabled, libraries and educational institutions.

My third amendment seeks to add a new Section Section 36(7) in the Copyright Act 1987, to read as follows:

Although Section 13(2) of the Principal Act provides for the fair use of copyright works by libraries, it is however very vague and does not create the conditions to encourage our libraries to become centres of knowledge.

In the drafting process of this Bill, the drafters not only did not involve the public in any consultation process, but also did not give librarians the opportunity to convey their unhappiness with the Copyright Act which inhibits their role as the trustees of our collective knowledge, which could make use of digital technology to preserve the nationís heritage and scholarship so that the nation could become an information society.

This is why the failure of a public consultation process to amend the Copyright Act to deal with the digital environment is a major omission, as we should give serious attention as to how the public can play an active and greater role for the nation to attain the objective of an information society and not just focus on how to benefit the international IT/multi-media companies to draw them to the Multimedia Super Corridor (MSC).

I am sure if the Deputy Minister meets all those responsible for the running of libraries in Malaysia, including the National Library and libraries in universities, he would find that libraries would want to have amendments to the Copyright Act give them greater scope to transform libraries into centres of knowledge and scholarship - and this is something we ought to do.

This highlights a major defect of this Bill, which is the common defect for the other three cyberbills, in failing to have a process of public consultation. The United States took three years in an extensive process of public consultation over multimedia intellectual property rights running into thousands of pages of views, opinions and representations.

We can benefit from these discussions in the United States on the proper form of copyright laws for the cyberage, but we should at least have our own process of public consultation in our own country. We should not develop a mentality of pscyhological dependence on the United States or other countries. There is nothing wrong in using what is good in other countries but this must be after a process of internalisation and adaptation for our local needs.

The government says that the law can be amended in future if circumstances require it. However, this should not be an excuse for not doing our best to get the best cyberlaw for our country.

I hope for the future cyberlaws that we will have to draft, public consultation will be an integral part of the drafting process, especially as this field is so new and complex.

My fourth amendment is to amend Section 10(d) of Bill concerning penalties for a new copyright infringement through circumvention of effective technological measures and removal or alteration of electronic rights management information without authority.

I am amending sub-section (iii) by substituting "two hundred and fifty thousand ringgit" and "five hundred thousand ringgit" with "one hundred thousand ringgit" and "two hundred thousand ringgit" respectively, which are the fines provided for the infringement for first and repeat offenders.

This is one problem which digital technologies pose for copyright arises from the ease and low cost with which multiple copies can be made and distributed in digital form, especially in a networked environment. It has been said that what makes this ease of copying and virtually costless distribution so frightening to copyright owners is that digital copies are perfect replicas of the original. Unlike the products of previous technologies, digital copies are not degraded in quality.

One promising body of research aimed at addressing this problem focuses on the development of technological means for protecting copyright works in digital form. Some researchers are studying systems for encryption of the contents of digital works, with decryption available only after payment has been received. Some are investigating the embedding of digital signatures in seemingly unimportant portions of digital pictures or movies, so that regardless of the digital manipulation that might be done to portions of digital pictures or movies, it would still be possible to detect that the subsequent work derived from the first work. Perhaps digital works will eventually be able to report back to their rightholders if the user is abusing access rights in these works.

This raises the further question whether we are developing towards a situation where the principal role of copyright in digital networked environments would be to protect encrypted works against decryption.

Innovative new techniques are being developed to address security or management driven concerns relating to dissemination and use of digitally-encoded information. For example, methods have been developed that can encode digitized information with attributes that cannot be disassociated from the file that contains that information. This field of technology has been termed "steganography" and been conceptually referred to as "digital fingerprinting" or "digital watermarking".

In essence, using steganographic techniques, a party can embed hidden messages in digitized visual or audio data. The embedded information does not degrade or otherwise interfere with the audio or visual quality of the work. Instead, the embedded information can only be detected if specifically sought out. More advanced steganographic techniques based on statistical or entropically-directed encoding are proving to be difficult to defeat.

For example, one system modulates a known noise signal with the information to be embedded and adds the "scaled" signal to the original data. Once encoded in this fashion, the steganographically encoded identification data is distributed throughout the work as subliminal noise and, like noise, cannot be fully eliminated from the work.

Thus, one can ensure detection of an embedded message even after substantial corruption of the data, such as might occur through compression/decompression, encoding, alteration or excerpting of the original data. By providing a means to indelibly tag a work with specific information, steganography is likely to play a complementary role to encryption as well as authentication techniques based on digital signatures.

Efforts to have electronic rights management information to protect software copyrights whether through the Internet or other networks deserves support, but we should also ensure that it does not stifle the IT creativity of our people.

There are two issues that needs to be considered - reverse engineering and decompilation, which could be deterred by the Bill.

When software is supplied to a customer, it will be in a form known as object or machine-readable code. If this were to be viewed by a user it would appear in a binary form as a series, a very long series of zeroís and oneís - which is of little use to the ordinary user. This is because most users are concerned only with what a program does rather than the manner in which this is accomplished.

Computer experts, however, may have different motives to understand not just what a program does but how it operates. One way to do this is through reverse engineering - the traditional method used by more backward countries to Ďcatch-upí with the more advanced technologies of the developed nations. The practice of reverse engineering has a lengthy history in more traditional industries and typically involves the purchase and dismantling of the products of a competitor.

In the computer context, reverse engineering may involve study of the operation of a computer program in order to discover its specifications. This is essentially a process of testing and observation and might involve pressing various keys or combinations of keys in order to discover their effects. The technique known as decompilation may be used as part of this process. Normally involving the use of other computer programs to analyse the object code, the technique seeks to reproduce the original source code.

Computer programs can be divided into two broad categories - operating systems and application programs. An operating system, the best known examples being MSDOS or Microsoft Windows, contains the basic instructions necessary for a computer to operate.

A very simple analogy might be made with a railway system. The gauge of the track and the height and width of tunnels and bridges might be regarded as equivalent to an operating system. They set down basic parameters which must be respected by anyone wishing to build a train to operate on the system. No matter how technologically advanced an engine might be, it will be quite useless if its wheels exceed the width of the gauge.

A producer intending to develop an applications package for use on a particular operating system must be aware of its functional requirements. In most instances, the information necessary will be made available by the producer of the operating system whose own commercial interests will be best served by the widest possible availability of applications to run on the system.

In the event that the information is not readily available - or that it is suspected that only partial information has been made available - the attempt may be made to reverse engineer the operating system.

A second occasion for the use of reverse engineering occurs at the level of applications packages. Programs such as word processors and spreadsheets store data in a particular format. In the case of basic text, a widely used standard exists ASCII (American Standard Code for Information Interchange). The text of most word processed documents is a much more complex creature, which are not standardised. A producer intent on developing a new word processing program, may wish to discover the codes used by rival producers so that conversion facilities may be built into the new product.

It is not uncommon for a manufacturer to withhold some information about its operating system so that it could develop its own application packages which have an advantage to those of its competitors.

This situation would make reverse engineering necessary for its competitors, but under the Bill, this would now become a criminal offence.

We must not stifle the IT creativity of our young people and should encourage them to experiment and be prepared for "trial and error" in this field.

I am proposing the reduction of the penalties of fines of RM250,000 and RM500,000 respectively for first and repeat offenders to RM100,000 and RM200,000 so that we do not stifle the growth of our own IT experts.

While we want to encourage multimedia companies to come to the MSC, we should not discourage the development of our local IT expertise and creativity. This is one more example why there should have been extensive public consultation to balance the interests of consumers and copyright owners. FOMCA was not even invited to submit its views in the formulation of this Bill.


*Lim Kit Siang - Malaysian Parliamentary Opposition Leader, Democratic Action Party Secretary-General & Member of Parliament for Tanjong