Paracopyright ("pseudocopyright" or "metacopyright") is legal protection above and beyond traditional
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
. The most often cited example is "legal protection for technical measures" from the 1996
WIPO
The World Intellectual Property Organization (WIPO; french: link=no, Organisation mondiale de la propriété intellectuelle (OMPI)) is one of the 15 specialized agencies of the United Nations (UN). Pursuant to the 1967 Convention Establishin ...
Internet treaties. Paracopyright provisions in these treaties are not about the term or scope of copyright, but instead are about providing legal protections for the technologies that may be used by copyright holders.
Paracopyrights afford legal protection to technologies that claim to be used to protect copyrights, but that are ineffective in that goal. A technical measure can not stop a technically sophisticated person who wishes to infringe copyright. To use the "digital locks" analogy, there is no need to "pick the lock" as the keys necessary to decode the content are embedded within authorized access technology. Both the locked content and the technology containing the key are commercially available to an infringer. Once a single person decodes a technical measure, the decoded content can be made available to others in the same way as if the technical measure never existed.
The effect of these technical measures are to impose specific contractual
license agreement
A license (or licence) is an official permission or permit to do, use, or own something (as well as the document of that permission or permit).
A license is granted by a party (licensor) to another party (licensee) as an element of an agreeme ...
s on those conforming to copyright law. As a concept, therefore, paracopyrights are perhaps better understood as a part of
contract law
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
and not copyright law. Unfortunately, important regulations regarding consumer protection and the "freedom to contract" are not imported directly into paracopyright laws, potentially creating imbalances in the law and harmful
unintended consequence
In the social sciences, unintended consequences (sometimes unanticipated consequences or unforeseen consequences) are outcomes of a purposeful action that are not intended or foreseen. The term was popularised in the twentieth century by Ameri ...
s.
Copyright is traditionally understood as a statutorily defined
bundle of exclusive rights provided to copyright holders. An
infringement of copyright takes place when someone exercises one or more of the copyright holder's exclusive rights without his or her permission. Anti-circumvention and anti-device provisions do not fit under this paradigm of a bundle of exclusive rights. On one hand, a copyright owner has the exclusive right to copy his or her work, and that exclusive right is infringed when someone else copies the work without permission. It is quite another story, however, to think about copyright holders having the exclusive right to circumvent TPMs (
Technical Protection Measure
Technical may refer to:
* Technical (vehicle), an improvised fighting vehicle
* Technical analysis, a discipline for forecasting the future direction of prices through the study of past market data
* Technical drawing, showing how something is co ...
) that they apply to their works, and the exclusive right to make and distribute devices that enable or facilitate circumvention of TPMs. Even assuming that this problem could be overcome, attempting to force anti-circumvention and anti-device provisions to fit the mold of the
bundle of rights
The bundle of rights is a metaphor to explain the complexities of property ownership. Law school professors of introductory property law courses frequently use this conceptualization to describe "full" property ownership as a partition of var ...
paradigm seems to necessitate adding a number of related rights to the bundle, including the exclusive right to apply a TPM to a copyright work.
See also
*
Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or ...
*
Digital rights management
External links
''Examples where the term has been used''
The Word Spy* Michael Geist, ''In the Public Interest: The Future of Canadian Copyright Law'', Chapter 4: Constitutional Jurisdiction over Paracopyright Laws - Jeremy F. deBee
* Peter Jaszi, ''Intellectual Property Legislative Update: Copyright, Paracopyright, and Pseudo-Copyright'', May 199
* David Nimmer, “Puzzles of the Digital Millennium Copyright Act” (1998-1999) 46 J. Copyr Soc’y U.S.A. 401 at 405
* Michael J. Remington, “The Ever-whirling Cycle of Change: Copyright and Cyberspace” (2002) 3:2 N.C. J.L. & Tech. 213 at 238-241
*
Ian Kerr (academic), Ian Kerr,
To observe and protect{dead link, date=January 2018 , bot=InternetArchiveBot , fix-attempted=yes ", How Digital Rights Management Systems Threaten Privacy and What Policy Makers Should Do About It", forthcoming in Intellectual Property and Information Wealth: Copyright and Related Rights (vol. 1), Edited by Peter Yu, Praeger Publishers, 2007.
Intellectual property law