McOrmond, Russell

I hope to make a formal submission later, but wanted to help get the conversation started.

In 2001 I made multiple submissions to the consultation that was made at that time, and have spent much of my volunteer in the 8 years since dedicated to trying to engage people in some pretty key aspects of what was discussed at that time.

My 2001 submission had a few key themes: http://www.flora.ca/copyright-2001.shtml

— "A new economy, or a new product for the old economy?"

The question is whether the proposals that much of the copyright consultations at that time, as well as those of today, are based on thinking that knowledge is a new product to be added to the old economy, or whether we are discussing something new. I believe that the zero marginal cost (to the producer) nature of knowledge expands the possibilities beyond those of tangible property, and much of the excitement around the new knowledge economy have been about the ways that knowledge is different than tangible goods.

Much of the policy that came out of the USA's 1995 National Information Infrastructure Task Force was forcused in the opposite direction, which is what could be done to cripple modern technology in order to make knowledge more scarce — more like tangible >$0 marginal cost goods. The USA policy laundered these backward ideas through WIPO in 1996, and passed them within the USA via the 1998 Digital Millennium Copyright Act (DMCA). There has been pressure from the USA for Canada to equally cripple its position within the emerging knowledge economy by adopting similar backward-facing policy.

I feel that the term "Intellectual Property" has blinded far too many people to the ways in which knowledge is nothing like tangible property.

Many of the most effective solutions to problems we find in the new economy, including copyright infringement, come from recognising these differences. It has encouraged people to equate entirely unrelated concepts such as copyright infringement and "theft". I go into more details in an article on the Digital Copyright Canada website: http://www.digital-copyright.ca/Jefferson_Debate

— "The Three Rights"

The basis of much of the copyright conversation in Canada since we indicated interest in 1996 (interest! not obligation!) by signing the treaty has been the policy laundered WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). These treaties radically expand the concepts within Canadian copyright to not only including "moral rights" and "mass-copying rights" (commercial uses of copyrighted works), but now to "access rights" where copyright holders are presumed to be able to control how, when, and with what specific brands of technological assistance audiences are able to access copyrighted material.

I strongly believe we should be going the opposite direction, mandating that copyright not be allowed to be abused to dictate to audiences any aspect of their own personal technology choices. I believe that any 'hardware assist' for communications, whether it be eye-glasses, VCR's, or personal computers, must be under the control of the citizen and not a third party.

To understand the nature of the attack on the rights of technology property owners we see from some "copyright" proposals, see: Protecting property rights in a digital world http://www.flora.ca/documents/digital-ownership.shtml

— Popular software business models

As a software author I discussed a few different business models utilized in software. It is important to realise that the Business Software Alliance (BSA, CAAST, etc) represents only a few firms utilizing a specific business model. They do not represent the entire software sector. Their proposals are aimed more at harming competing business models than they are at reducing copyright infringement. The statistics they use to justify their proposals are critically flawed in that they do not accurately differentiate infringing software from software created and distributed using alternative business methods.

The invalidity of statistics that claimed to demonstrate "harm" for the major studio movie sector, the major recording labels (note: not the "music" industry), and the BSA members was shown with the recent recall of a "study" by the Conference Board of Canada. We need to move forward

with a science based approach to this policy, not the science fiction brought forward by companies trying to protect themselves from new economy competition.

— Potential conflicts with other Public Policy

I discussed how many of the proposals made, such as those in the 1996 WIPO treaties, have implications far beyond copyright into areas such as competition law and existing trade agreements.

While 8 years have passed, it is my impression that the Canadian government is still stuck in the 1995 thinking that became the 1996 WIPO treaties. We should not be looking at technology owners as a threat and using anti-circumvention legislation to circumvent their technology property rights. We should not be introducing new concepts into copyright such as the undefinable "making available" right which simply makes clearing copyright related rights so expensive that only the old-economy style companies will be able to do so.

We should also not be giving old economy phone and cable companies further excuses to inspect and filter our communications by holding them liable for communications that they do not censor based on an unfounded accusation of a copyright infringement (the so-called "Notice and Take-Down" regime). We need to be moving forward to encouraging companies that want to offer proper Internet Services under the origional innovative end-to-end design to eventually replace the phone and cable companies. Economic textbooks including "The Innovators Dilemma" explain well why phone and cable companies will be the least able to offer services which — when they are configured correctly — replace what was previously offered by phone and cable services.

Copyright needs to be clarified and simplified if it is to regulate the activities of private citizens. Rules which were created to only regulate commercial activities in a historical technological context cannot simply be carried forward (or made worse, as has thus far been proposed) and regulate non-commercial private activities. Modernising copyright should include rejecting the backward direction proposed in the 1996 WIPO treaties, and heading in a very different direction.

Russell McOrmond