In the US, laws and court cases provide Americans with the freedom to "format shift" their music from CDs to a computer to an iPod, and the freedom to "time shift" video has allowed digital video recorders to flourish. But when other countries try to encode similar copyright exceptions into law, the US government frowns on the practice, saying it "sends the wrong message."

We know this thanks to WikiLeaks, which has released a set of cables including US embassy reports on various intellectual property questions around the world. Back in 2005, the US embassy in New Zealand reported on the New Zealand government's plan to overhaul its 1994 Copyright Act. One part of that overhaul, which would have made copyright stronger—well, tougher—was an explicit recognition that format-shifting and time-shifting would be allowed.

The New Zealand government has proposed amendments to the Copyright Act 1994 that would allow format-shifting, or the duplication of sound recordings to another format for a purchaser's private use without the copyright owner's permission. The amendments also would extend to all communication works a provision in the Copyright Act that permits time-shifting, or the recording of a broadcast or cable program for private use solely for the purpose of viewing or listening to the recording at a more convenient time or for making a complaint . As the International Intellectual Property Alliance noted in its Special 301 submission, these exceptions to copyright protection would send the wrong message to consumers and undermine efforts to curb unauthorized copying of CDs in New Zealand. They would cost the industry in revenue and profits and discourage innovation.

Yes, just imagine the orgy of innovation that could have taken place back home if only the US had prevented people from moving their CD collections to iPods, and had kept TiVo from launching.

The International Intellectual Property Alliance (IIPA) mentioned in the cable is a US umbrella group of trade associations like the RIAA and MPAA; each year it produces a list of countries that should be "named and shamed" under the US "Special 301" process. In 2005, the IIPA Special 301 report (PDF) blasted New Zealand for the proposed changes discussed above, for these reasons:

Format shifting of sound recordings. The recommendation to allow unauthorized copying of sound recordings into an unlimited number of formats threatens the roll-out of new formats and the development of innovative consumer delivery mechanisms for such recordings. It could also undermine current efforts to curb unauthorized copying of CDs in New Zealand, through means such as unlicensed CD-R burning machines available in supermarkets. Time-shifting. Allowing unauthorized time-shifting of all works communicated to the public (except for "some on-demand services") would virtually eliminate the ability of right holders to experiment with diverse approaches to meeting consumer demand for electronically delivered materials, from permanent downloads, to temporary streams, to everything in between. Reduced access and choice for New Zealand consumers would appear to be the inevitable, though surely unintended, result.

The New Zealand reform process dragged on for years. In 2008, IIPA was still imploring the US (PDF) to lean on the Kiwis, saying, "IIPA urges the US government to deliver these messages in its bilateral discussions with New Zealand, and to seek to turn the revision process in a more constructive direction during 2008."

The copyright overhaul did pass in 2008 (read the text) and made a wide range of changes to New Zealand law. When it passed, it still contained exceptions for format-shifting and time-shifting, though the exceptions were quite narrowly crafted. For instance, one could legally move a CD to a computer and an iPod so long as the following conditions were met:

The sound recording is not a communication work or part of a communication work; and

The copy is made from a sound recording that is not an infringing copy; and

The sound recording is not borrowed or hired; and

The copy is made by the owner of the sound recording; and

That owner acquired the sound recording legitimately; and

The copy is used only for that owner’s personal use or the personal use of a member of the household in which the owner lives or both; and

No more than 1 copy is made for each device for playing sound recordings that is owned by the owner of the sound recording; and

The owner of the sound recording retains the ownership of both the sound recording and of any copy that is made under this section.

The content industries had concerns, some apparently legitimate, that early drafts of the law were too open-ended. Fair enough; arguing over the implications of legal language is a debate worth having. But the US embassy's uncritical endorsement of the IIPA view, and its statement that providing citizens with codified rights to format shift and time shifting "would send the wrong message" neatly sums up everything wrong with public US efforts around copyright.

More copyright is not always better copyright, and one doesn't win public support for copyright by trashing every attempt to promote exceptions to copyright's reach.

The official approach to copyright has changed little under President Obama, but there have been occasional glimpses of a more enlightened perspective. As a US negotiator put it last year, "The United States is committed to both better exceptions in copyright law and better enforcement of copyright law." That's as it should be. Exceptions may need to be crafted with care, but branding exceptions—especially for common use cases like time-shifting—as "sending the wrong message" itself sends a poor message.

Listing image by Stephen Downes