In other words, companies will increasingly turn to "technology-based protection, in the form of encryption and anti-circumvention measures." That, my friend, will be the end of "fair use."

A fascinating perspective on this commentary from LA lawyer Joshua Wattles:

Very interesting to see John Carroll, "a software engineer ........ [who] specializes in the design and development of distributed systems using Java and .Net." give his thoughts to the issue of intellectual property protection in "developing" countries.

His views would make even more sense if there were a reliable system in place to permit copyright owners in the developed world to grant use rights to developing countries at no charge and if the major copyright owners in fact did so. I don't know of WIPO having such a system in use at necessary levels of participation. TRIPS and the WTO (not WIPO) encourage a world-wide integrated economy with as few restrictions as possible on the transfer of goods. Sounds compatible, except that it has become increasingly difficult to enforce territorial restrictions. In fact, specifically in the technology arena in which Mr. Carroll lives, territorial restrictions are near impossible without the intervention of government controls of a kind we would all (I hope) find objectionable.

What surprised me was what he didn't say in this commentary. There is a possibility that by combining these elements: (a) the World Wide Web or its equivalents as a distribution method; (b) digitization of much of the copyrighted material a developing country might wish to use for education, industry and practical applications; and (c) the continuing efficiencies and cost reductions in providing the technology to access these materials - -developing countries could leap-frog the need to have the kind of infrastructure Mr. Carroll suggests is necessary to their development of indigenous copyrighted materials and to their participation in the "knowledge economy."

I hope that affluence (one of Carroll's posited predicates) is not a requirement for that development and participation. Certainly mass poverty, starvation and seemingly endless rounds of genocidal tribal and religious warfare will likely preclude the creation of works - - but they also preclude the meaningful use of works. A developing country not in massive crisis need not be affluent to make very significant contributions to world intellectual property beyond the cultural contributions of all peoples. And a developing country with unfettered access to the intellectual property of the developed world will, I would expect as an axiom, be able to contribute more - - and use more.

Its the "use" that gets in the way of the purists from doing the right thing in these circumstances. To my mind, the "right" thing is to give these countries the access they need and not sweat the details. This statement from Carroll's piece is completely inaccurate:

"Second, by refusing to protect copyrighted material, third world nations tell their citizens not to expect to have to pay for such material. This makes life much harder for domestic producers of copyrighted material. Local producers essentially price themselves out of the market. As an example, the US in the 1800's protected domestic authors copyright even as they ignored international ones. This resulted in a dearth of American authors, as they were forced to compete with an influx of cheap copies of British works. Imported works were "good enough," and so there was less incentive for Americans to pay high prices for domestically produced content."

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