Fair Use – Riyadh Al-Balushi

Similar to the copyright laws of other Gulf states, the Omani copyright law adopts the exhaustive closed list system for copyright exceptions. This means that for a use of a protected work not to be considered an infringement, that use must fall under an explicitly stated exception under the copyright law. The fact that a use is personal, non-commercial, or accompanied by proper attribution, on its own, is not sufficient to protect the use against claims of copyright infringement. This is different from copyright laws that adopt a flexible copyright exception system, such as ‘fair use’ in the USA, where any use may be permitted, even if not explicitly mentioned in the law, as long as the use can be considered ‘fair’.
Copyright laws that adopt a flexible copyright exception, such as the US copyright law, are capable of enabling new innovative uses of technology without the need for the actual law to be amended, whereas copyright laws that adopted a closet list of exceptions, such as the Omani copyright law, are usually incapable of accommodating for new technological uses without amending the law.

An example of such a new technological use is the practice of ‘text and data mining’ – a research method that uses computer software to analyse massive amounts of data to look for interesting trends. As an illustration, text and data mining can examine thousands of medical records to identify links between certain symptoms and diseases in a way that cannot be done by a human individual. Similarly, such method can be used in the study of law to electronically analyse massive amounts of court decisions to identify trends and connections between different legal key terms. Due to the way text and data mining works, the computer software making the analysis must copy the data, at least temporarily. Because the Omani copyright law does not have an exception to permit copying in this specific case, text and data mining is considered an activity that violates copyright law if the permission of the author is not acquired. It is not practically possible to acquire permission for many text and data mining cases because the data is extremely massive in size and there is no way for the researcher to go and seek the permission of every single author of such data. If the data examined is public data on the internet, such as tweets or other user generated content, it might not be possible to even identify the author of the work.

This would not have been the case had the Omani copyright law adopted a flexible copyright exception like fair use. Under such a system, it would be possible to argue that text and data mining is permitted as long as the use satisfies the conditions for fair use. This does not only mean that legislators in countries like the USA do not have to waste their time amending the copyright law every time a new technology comes out, but this also makes the USA a much more attractive environment for the adoption of new technologies, such as text and data mining for research, because their law is flexible enough to permit it.

The copyright exceptions currently offered by the Omani copyright law are inadequate and do not satisfy some of the most basic needs of users in the country (we are the only country in the GCC that does not have a private use exception). Oman needs to have a text and data mining to enable the use of this method by researchers in the country. Oman should also reconsider the general way in which it implements exceptions under the copyright law and must seriously take into consideration the needs of the members of society when determining this issue.

Digital Rights Management or DRM are tools used by distributors of digital media to ensure to control the way in which their music, video, and other digital goods are used and distributed. The majority of countries, including Oman, make it a criminal offense to disable DRM, to manufacture or import tools that disable DRM, or to share information to enable others to disable DRM.
Though not strictly speaking an actual substance of copyright, DRM offences are placed in copyright legislation due to their usage in that field. Content distributors use DRM to enforce their copyright by locking down their digital goods. For example, when you download a ringtone from your mobile operator service directly, that ringtone will be equipped with DRM that will not allow you to forward this ringtone to anybody else. If you purchase a DVD, you will not be able to create a copy of it using any legal software in the market. If you rent a video from iTunes, you will not be able to copy that video onto any other machine and you will have a very limited time to watch it after which the video will stop working.

Due to the ease at which copyright work can be copied and distributed over the Internet, one of the industry’s responses to enforce their copyright was the introduction of newer and newer DRM technologies. By using DRM content owners can have almost complete control over the use of the copyright work and will ensure that it is not copied or duplicated easy.

DRM has also contributed to the creation of new business models and services that would not have existed otherwise, for example, it would be impossible to have a legally cheap music rental services such as Napster if it wasn’t for DRM.

The available of DRM also helps the regulation of content through different territories for the protection of children and society when moral values and tolerance of sexual and violent content varies from one distinction to the other as DRM makes it difficult to play American movies in Europe).

However, for the greatest part, most people think that DRM is a bad thing. Starting from the top, there is no evidence that using DRM actually reduces piracy. Steve Jobs himself said in 2007 and DRM does not work. The nature of digital goods makes it impossible to lock down the ability to copy a work because by definition that data must be unlocked to be used and therefore it will always be possible to record and copy that data, whether it digital or analogue format, and then redistribute it. DRM targets the wrong people, people who will pay for it are not the pirates. It is demeaning because it makes every single one of us a suspect of copyright infringement.

A more problematic area of DRM is that it does not only stop illegal copying, but legal copying as well. Copyright is not an absolute right, but one which is supposed to balance the interests of society against those of the author. The collection of these legal copying instances are called in the US “Fair Use” and in Europe “Fair Dealing”. In Oman, these are called “Free Uses” and are specified in Article 20 of the Copyright Law 65/2008. A simple example of these rights are the right to make a single backup copy under Article 20(5). When DRM is used to protect a copyright work, then breaking the protection to create a copy would constitute a criminal offense regardless of whether the DRM was removed to create a legitimate backup copy.

This example could also be illustrated in the case of DVD playback on the Linux OS, no Linux OS has the license to play DVD movies on it, but Article 20(5) allows the modification of a copyright work in order to make a work compatible with another operating system, however, due to the fact that DVD movies are protected by CSS DRM, it will not be possible to make use the format shifting exception to play the DVD on Linux and any attempt to create a tool to play DVDs on Linux, or use one, would constitute a criminal offense under Article 40 of the Copyright Law.

That basically renders all the exceptions of copyright protection pointless as the majority of copyright works can now be DRMed, whether there was or wasn’t a point for using this protection. That obviously cannot be right, as copyright was never meant to grant such a power to content makers to control the way we use content we legally purchased. No legislator anywhere made the conscious decision to introduce such stringent rules, but this change in the way copyright operates was a result in the change of technology, for which copyright law was modified in the WRONG way “adapt” to it.

Not only does DRM not allow for free use exceptions, but it does not take regard of even works in the public domain for which no copyright subsists at all as a protection for DRM is granted whether or not the content it actually protects is in copyright or not.

DRM also poses a number of privacy issues, as at some instances personal data, such as names and credit card details, might be required to be submitted before the digital product is consumed. DRM can also be used to track the way and frequency at which the product is used. DRM proved to also be a possible cause of serious security risk to user computers as was the case in the Sony rootkit music CD fiasco.

The complex structure of today’s market and the way different tools and required to consume media, all make it possible for DRM to be used to affect the secondary market, as content providers may control the way products are played (e.g. DVDs). This could have an impact on competition and may stifle innovation as new technologies cannot be introduced if all current media is locked down to a specific DRM that cannot be legally broken or adapted without the permission of the owner.

The problems with DRM are international, the majority of modern copyright legislation including the US, Japan, and UK all have similar provisions against the circumvention of DRM. The laws in Oman are just as bad, especially as the DRM provisions were introduced in response to comply with the requirements of Article 15.4 of the Free Trade Agreement with the US. Any attempt to remove or amend the bad DRM provisions in Oman could render us in breach of our obligations under the FTA. Our only solace is that the situation in the US (and all other countries that signed an FTA with the US) is just as bad, but that does not really solve the problem.

Luckily, more and more companies seem to know that DRM is not the solution to the problem, iTunes announced a couple of months ago that it will make its entire music catalog without DRM, Amazon has always been so since the day it launched its online music store.

But now having DRM free content seems like a privilege and not a right. An international movement would have take place for the law to change that position.