What is the Modified Arab Copyright and Neighbouring Rights Treaty?

The Arab Copyright Treaty [الاتفاقية العربية لحماية حقوق المؤلف] of 1981 is an old international copyright treaty that nobody seems to take seriously in the Arab World and which was recently updated through a the Modified Arab Copyright and Neighbouring Rights Treaty [الاتفاقية العربية لحماية حقوق المؤلف والحقوق المجاورة], but it seems that nobody has noticed this at all. I recently discovered that Qatar formally acceded to this Treaty, so I thought I’ll write a little bit about it.
Continue reading What is the Modified Arab Copyright and Neighbouring Rights Treaty?

DRM, New Business Models, and User Rights

Digital rights management, or DRM for short, are the digital locks that control the way users access and interact with digital goods. For example, you cannot copy the video off a Blu-ray disc because these discs are equipped with technological protection measures that enable the user to view the video, but not do anything else with it. These technologies were created by the content industry to combat online piracy because it was thought that classic copyright law on its own is not sufficient to protect the interests of the content industry. So the content industry thought, ‘the answer to the machine is the machine’, and created a technology to combat the piracy enabled by new internet.

But then again, there is no perfect technology, and because the objective of all content technologies at the end of the day is to deliver a certain song, video, or some other content to the end-user, all DRM technologies are susceptible to circumvention. Once a single circumvented copy of a work is made available online, it does not matter that all other copies are protected, because it only takes that one single incident of circumvention to provide all illegal sharing platforms with a source to duplicate and distribute on their networks. Even after all these years and all the DRM technologies developed, it remains extremely easy to find online illegal copies of movies and songs.

DRM did not provide a solution to piracy, and instead has limited the ability of legitimate users, who pay for the content, to properly enjoy the content they legally acquired. If you purchase a movie or a TV show episode from the iTunes Store you cannot watch it on an Android device, a PS4 or an XBox, whereas if you illegally download it you can play it on any device you want. One might say that there are numerous online video stores and you can buy your content from the store that works for your device instead of complaining about Apple’s DRM, but what if I own multiple devices, should I buy the same content multiple times just to make sure that it works on all my devices, or should I have the right to use the content the way I choose if I pay for it legally. Similarly, if a device is discontinued or a business goes bankrupt, DRM does not allow the user to make sure that the content remains usable in the future.

With that being said, we need to acknowledge that DRM has enabled the creation of some extremely useful business models that provide us as consumers with different options on how to pay for content. As DRM enables businesses to control how often a file is played or how long a file remains valid, we are now able to rent a digital file or pay for a subscription. Thanks to such technologies we now have things like Netflix and Spotify that charge us a tiny fraction of the money we used to in the past for consuming the same amount content.

I don’t think that the existence of DRM itself is the problem, the problem is the fact that many laws around the world make it illegal to circumvent DRM. As a legitimate user, I should be able to circumvent DRM if DRM restricts me from carrying out legitimate uses or subjects me or my property to risk, and companies that apply harmful DRM to content should be held accountable and punished for doing so. The law protects against the circumvention DRM irrespective of whether the work to which DRM is applied is protected by copyright (i.e. in the public domain) and irrespective of whether or not the circumvention is undertaken to carry out a use that is permitted by copyright (e.g. for the purpose of quotation or review) – this does NOT make any sense.

Even though international treaties, such as the WIPO Copyright Treaty, require States to protect against the circumvention of DRM, these treaties permit States to have exceptions to allow the public to circumvent DRM in certain cases, but not all countries take advantage of these flexibilities. For example, the copyright law in Oman does not allow ANY exceptions to the anti-circumvention measures found in Article 40(1) of the law.

DRM continues to be used in more and more online services, but if no action is taken, the restrictions imposed by DRM will override all the checks and balances that copyright law is meant to respect in order for society to fairly benefit from cultural works.

Omani Copyright Law Discriminates Against Disabled Persons

According to the National Centre of Statistics and Information, there are more than 60,000 persons with disabilities in Oman. 30% of these persons have a sight related disability which means that they cannot easily read written materials. According to the World Blind Union, only 7% of all the books published in the world are available in formats accessible to the visually impaired, such as Braille – and you can bet that in Oman not even 1% of the books available in the country are accessible in such formats.

Technology can provide the visually impaired with numerous opportunities to access to books. It is possible to use screen reader technology to read aloud any text on a computer screen to a blind person or to convert it into refreshable Braille display. This is not only usually economically cheaper than producing a standard Braille version, but it is more practical because traditionally accessible books are heavy and massive in size in comparison to printed books.

However, even though technology can help make books accessible, the Omani Copyright Law makes it an act of copyright infringement for someone to convert a printed book into a format accessible to a visually impaired person if the permission of the author is not acquired. Oman is an extremely small market and it does not make economic sense for publishers to produce and market accessible formats of their books to blind users in Oman. The Omani Copyright Law is probably the most restrictive Copyright Law in the entire Arab World because it does not even allow users to make private copies of protected works for their personal use for any purpose – even if making this copy is necessary for a blind person to read. To make things worse, the Omani Copyright Law allows copyright owners to impose technological protection measures (TPMs) that can stop a blind person from using applications such as screen readers without the permission of the author. If a user circumvents the technological protection measures, he will be in violation of the law irrespective of the purpose for circumvention.

The international community has made serious efforts in recent years to help persons with disabilities overcome the restrictions imposed by copyright. This has led to the adoption of the Marrakesh Treaty for the Visually Impaired. This treaty makes it an obligation on States to include exceptions in their copyright laws that enable the visually impaired to have access to copyright protected works, but unfortunately Oman is yet to accede to this treaty. It is also not clear if Oman can actually join this treaty at all because the Free Trade Agreement Oman signed with the USA greatly limits the way Oman can modify its copyright law. For example, Marrakesh Treaty requires States to make sure that technological protection measures do not stop the visually impaired from using copyright exceptions, but the Free Trade Agreement with the USA puts restrictions on the extent to which Oman may permit the circumvention of technological protection measures which may be in violations of the Marrakesh Treaty.

The unfairness of the Omani Copyright Law towards disabled persons is not only morally wrong, but it could also be seen as a violation of the human rights of disabled persons. Oman is a party to the Convention on the Rights of Persons with Disabilities which requires Oman to ensure that disabled persons enjoy the right to education and the right to participate in culture without discrimination. The Omani Copyright Law is lacking on different fronts, but its failure to support disabled persons is a glaring problem that needs to be addressed immediately.

Open Data in the Arab World

I recently wrote a report examining the status of open data in the Arab World with Sadeek Hasna. As today is the Open Data Day, I thought it would be a great opportunity to talk about it.

Our report uses the data of the Global Open Data Index to examine the extent to which Arab countries have released their data in an open manner. We decided to focus on a limited number of datasets, namely the annual budget, legislation, election results, and the company register, and looked at how Arab countries succeed or fail in releasing these datasets.

Our report found examples of some good initiatives by Arab governments relating to our chosen datasets such as the website of the Emirati Ministry of Finance (which releases the government annual budget in Excel format making it easy for analysts to process this data), Al Meezan – the legislation website of the government of Qatar (which provides all laws in full text format and adopts a creative commons licence), the Egyptian Presidential Elections Committee website (which provides its election data in Excel format), and the website of the Bahraini Company Register (which provides an excellent search engine to look up company data).

Even though Arab governments have done well in some specific cases, there is a lot of work that still needs to be done. Many government websites release their data as scanned PDF files that are extremely difficult to use, and very few websites give the explicit permission for the users to copy and re-use the data. We could not identify any website that enabled the bulk download of of the datasets in question.

You can read the report on Open Data in the Arab World here.

Image credits: ‘Map of Arabic-speaking countries by Illegitimate Barrister – Licensed by CC Attribution 3.0

Text and Data Mining under Omani Copyright Law

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.

Open Access in the Humanities and Social Sciences

I recently attended a workshop for law researchers at my university, the School of Oriental and African Studies (SOAS), in which the majority of the attendees were actual academics from the law school. The objective of the workshop was to clarify the open access policies of research funding bodies in the UK, namely HEFCE and RCUK. I have to admit even though I have been to numerous open access workshops and conferences, this was the first time I attend an event where people were not  interested in open access and merely saw it as another hassle that they have to go through to get their job done. I guess it is not realistic to think that everyone would be a supporter of the open access movement, but I was really surprised how the law academics, especially those at SOAS, who teach and study justice and inequality in Asia and Africa, have no interest in open access at all and whether or not what they write can be read by the people in the countries they research.

It was difficult not to compare the vibe I felt in SOAS with the vibe at OpenCon, a conference I was very fortunate to attend just a few weeks before. It is certainly not fair to generalise, but the majority of the attendees and speakers at OpenCon came from STEM fields, there were very few speakers from a legal background, and definitely there were no keynote speakers who were law professors. OpenCon was a conference for people who already knew what open access is, believed in it, and came to share experiences and strategies for pushing it further. There were so many inspirational speakers, such as Mike Eisen and Erin McKiernan, who shared their stories of how they took open access as a matter of principle even though it did not seem as a wise career move, but they persevered and succeeded.

Even though the majority of the speakers and attendees were from the STEM fields, one session at OpenCon showcased a major open access developments from the area of humanities, namely, the launch of the Open Library of the Humanities. This project that is being led by Paul Even and focuses on the academic literature in the humanities. It creates a new business model for publishing open access journals that does not require end users to pay subscription fees or authors to pay article processing charges. This development is important because the current most common open access approach attempts to remove the barriers of access to academic literature by removing subscription fees from readers and requiring the author to pay a fee to have his or her accepted article published in the journal. The Open Library of Humanities relies on partnerships with libraries to fund a collective of journals through a library subsidy system in which each library can pay a few hundred dollars every year to support the publication of the open access articles published by the Open Library of the Humanities. As more libraries join the system, the contribution required to support the Open Library of the Humanities becomes smaller into a tiny fraction of what each library currently pays for subscription fees to commercial electronic journal databases.

The Open Library of Humanities officially launched in September 2015, but it already has the potential of being a major game changer in the publication of open access academic literature in the humanities. It does not publish any law journals yet, but hopefully someone can propose someone to them soon.

Oman Ranks #66 on the Global Open Data Index 2015

Oman ranked at 66 on the Global Open Data Index 2015 making it the highest ranking Arab country on the index. The Global Open Data Index is a crowdsourced survey of the performance of governments in the area of open data. It looks at the extent to which governments release their data in a technically and legally open format that permits the public to copy and re-use this data for both societal and business objectives.

Oman has been actively working in the past few years on the ‘government digital transformation’ project, which is spearheaded by the ITA, but the biggest development in the area of open data did not come from the ITA, it came from NCSI. The NCSI launched earlier this year a fully fledged open data portal in which data is published in a technically and legally open manner. This portal publishes statistics relating to Oman in a variety of areas under machine-readable formats that users are permitted to copy and re-purpose.

It is also great to see that the Omani legislation dataset, which is published by MOLA, ranks 16 globally. This score is probably due to the legal requirements for legislation to be published in the official gazette within a maximum of two weeks and the exemption of legislation from the protection of copyright under Omani law (making it legally open). MOLA is very quick in updating the legislation on its website and announces its weekly updates on both Twitter and Facebook. The benefits of the availability of the legislation dataset are not hypothetical: I personally participate in a project that takes advantage of the fact that legislation is an open dataset in Oman.

Oman is definitely moving in the right direction when it comes to open data, but it has the potential of moving even higher up on the index by making small tweaks to its existing websites. For example, the Company Register at MOCI has digital records of all the information needed for the data index, but currently displays a limited amount of data on its search engine results. Allowing users to view small additional details, such as the address and list of shareholders, could make Oman satisfy the requirement for this dataset. This change will not require any serious financial investment because the data is already available to MOCI in a digital format in their system, all they need to do is display it on the search results.

The Omani government should take note of the Global Open Data Index to evaluate its performance and figure out new ways to make its data more open and consequently more easily accessible to the public. The Global Open Data Index is an easy indicator to understand and can give ideas for practical improvements that could actually be implemented.

DRM and the Balance of Copyright Law in Oman

Like all copyright laws around the world, the Omani copyright law is meant to draw a balance between the ability of the authors to make a living out of their craft on the one hand and the right of members of society have a fair and reasonable opportunity to access and use cultural works.

Continue reading DRM and the Balance of Copyright Law in Oman