Big Achievement for Creative Commons in Ecuador: National Assembly decides that Fair Use trumps DRM

The New Intellectual Property Legislative Proposal was first transformed from text to code in January 2014, when the Ministry of Science, Technology and Innovation (SENESCYT) decided to collectivize the creation of this Act by posting the first draft in a website, and not just any website but a wiki that allowed citizens to explore the articles and submit questions and proposals to amend the law before it was introduced to the National Assembly.

On May, 2014, Minister René Ramírez wrote on his blog:

“Today, there are enough technical conditions, cultural heritage and political will (…) to build cognitive systems with such institutional designs, beyond purely state-owned or privatizing designs.”

As a result, the Ingenuity Code (as it became known) dragged the efforts of hundreds of concerned citizens from Ecuador and abroad. The team behind the curtains had to deal with more than 2 million of visits and over 38,000 editions during the past twenty months. The result was a Legislative Proposal that rightfully balanced the rights of the general public with those of the creators and holders. Maximizing the use of limitations and exceptions allowed by International Treaties and recommended by the United Nations Special Rapporteur in the field of cultural rights.

On June, 2015, the Law Proposal was submitted to the National Assembly which, during the following couple of months, conducted public consultations with several Civil Society Organizations. On July 1, 2015, the Specialized Permanent Committee on Education, Culture, Science and Technology received a Creative Commons Representative which during his ten minutes presentation recommended:

• To Guarantee Open Access to Publicly-Funded Scientific Literature, and;
• To Guarantee Fair Use of Copyrighted Material when such works are protected by encryption or other similar systems, usually known as Digital Rights Management (DRM).

While a disposition on Open Access is yet to be defined, Article 121 of the Updated Law Proposal now allows the circumvention of DRM-protected works to exercise any fair use legally defined. This is a huge deal because in countries like USA and Canada — and now in all those enforcing the mandates of TPP — the software used to protect works in the digital realm creates a paralegal system that gives firms the power to control access to digital content even when that goes against the uses permitted by law. Sometimes this can be really serious, 40% of the source code of insulin pumps has never been inspected by independent security researchers and nearly 1.4 million cars were recalled by Chrysler due to the discovery of a vulnerability that allowed to access remotely the steering and brakes.

In 2007, Fair Use industries generated revenue of $4.7 trillion in the US only and its industry added value represented 6.2% of total GDP. About 18,000 Americans worked in a firm that benefits from Fair Use for the same year. The decision made by the Ecuadorian National Assembly to include a clause of Fair Use trumping DRM is a big win for the public as it entails a balanced use of Copyright Law. Final approval for the Act is expected during 2016.