Archived - Smits, Robert

My name is Robert Smits, and I live in Ladysmith BC. This is my submission to
the copyright discussion requested by the government of Canada.

Let me begin by answering the first of the questions you posed.

1. How do Canada's copyright laws affect you?

Free and Open Source Software

Quite considerably. I am a user of free and open source software (F.O.S.S.), both at home and at work, Free and opensource software depends on copyright to maintain our freedoms to modify, use, and pass on free and open source software. The use of F.O.S.S., particularly Linux, gives me extremely cost effective and secure software, both to manage a non-profit society and in my day to day life in a way that would be impossible with proprietary software.

Anti Circunvention DRM

One of the problems with many consumer goods these days, however is the use by suppliers of anti-cicumvention DRM to limit my uses as a user. For example, the producers of DVDs use DRM to prevent those of us with Linux operating systems from being able to view DVDs on our Computers. It doesn't work, of course, and libdvdcss has long ago been reverse engineered so that we can play DVDs on Linux computers, but we shouldn't have to go to extra trouble and effort to do this, (and nor should we be banned from doing so). I don't object to purchasing DVDs – but I do object to the producers thinking they have the right to tell me how I can play the DVD I purchased from them, or in which country I can play them.

Over the years, I have purchased a lot of software that is DRM ridden and no longer able to be used. For example, I used tax preparation software that required on-line validation to enable it. After several years, if I want to reinstall the same software I paid for some years ago, (because, for example, I bought a new computer) the distributor has ceased to provide the online validation and I can no longer use it. Therefore, Canadian legislation must allow us to circumvent DRM as long as we're not doing it to sell material to others in violation of copyright.

Format / Time Shifting

I also listen to music, and have copied most of my CDs and old records to digital formats so that I can take them with me on a "thumbdrive" and listen to them in my car. We must have the right to change formats of the music we have purchased from vinyl records to audio tape, or from CD's to MP3s, for example. If I've already paid for "Woodstock", it should be completely legal for me to transfer it to an MP3 I can listen to out of the house, without having to buy it again. It must also remain legal for me to record radio or tv shows I'm unable to listen/watch to at the time of airing.

In addition, Canadians who are partially sighted or have other disabilities must not be prevented from shifting the format of the material to one they can more readily access. It must never be a copyright violation, for example, to enlarge text and increase contrast so someone with vision problems can access it. Nor should it be illegal to provide this altered format to others.

Copyright Term

I also collect audio files, primarily old time radio programs, that were originally aired in the '30s, 40's and 50's. Under existing Canadian copyright laws these are copyrighted for 50 years from the year in they were first broadcast, and so anything broadcast in 1958 or earlier is in the public domain.

Much of this material is unavailable from the original broadcasters, and what is available has for years been traded amongst afficionados who have preserved and maintained this history. I really want to see us able to continue preserving these records without falling afoul of any new extension of the term of copyright.

Recently there has been a trend of using copyright in such a way as to prevent competition in many consumer products. We really need to stop photo-copier and printer companies from claiming that competitors making alternative toner cartridges are violating copyright because they have software installed on the cartridges to prevent competitive use. It would be like having chips in your car that forced you to use only Shell gas in your tank, for example. We need competition in toner sales, not monopolies.

Existing laws need to be modernized only to the extent that they remove these barriers to competition, are easier to understand and enforce, are fair to the public, users and creators alike, and meet the original test of copyright – to provide a limited term of exclusive expolitation and then pass to the public domain. Copyright laws were never intended to provide lifetime security for the author and all his/her heirs for a work. Fifty (50) years ought to be perfectly adequate to encourage creators on the one hand and make the material available in the public domain on the other, although I'd prefer a shorter term.

Misleading "Tales of Woe" by the Entertainment Industry

I'm also very concerned that we will be coerced in Canada to follow some of the disastrous laws enacted elsewhere – the discredited DMCA in the USA, for example. What we see here is the constant attempt by the R.I.A.A and its Canadian counterpart , C.R.I.A., to claim that all of the decline in their income is due to "illegal" downloading of their product.

I'm not convinced, and nor should you be. Much of the decline in the music industry is because the music industry is and has been using a failing business model instead of taking advantage of the much cheaper distribution that the internet offers. Many of the younger consumers of the music industry's products have switched to being interested in computer gaming, both on and off-line.

I also find Michael Geists comments on his blog, showing how the American and Canadian music industries have orchestrated and misled discussion about Canadian Copyright legislation, very illuminating. It can be found at
http://www.michaelgeist.ca/content/view/4079/125/ . I urge you to reject the manipulation of public discourse by the entertainment industry.

The tactic of suing their customers hasn't helped them to generate sales, either. Instead of embracing people who like music a lot, and would likely purchase a great deal of it once they hear a new artist, the music industry has concentrated on trying everything they can to keep control in their hands by any means, legal or otherwise. Their lobbying efforts are focused on passing laws that restrict artists' ability to take control of their own music, reach their fans in more direct ways and earn a decent living from music without sacrificing their autonomy.

And it hasn't impressed the artists noticeably either – including Avril Lavigne, Sarah McLachlan, Chantal Kreviazuk, Sum 41, Broken Social Scene, Stars, Raine Maida of Our Lady Peace, Dave Bidini of Rheostatics, Billy Talent, John K. Sampson of Weakerthans, Sloan, Andrew Cash, Bob Wiseman, a co-founder of Blue Rodeo, and the Barenaked Ladies – who launched the Canadian Music Creators Coalition.

The Canadian Music Creators Coalition says that they, as Canadian music creators, have identified three simple principles that should guide copyright reform and cultural policy. They are:

- First, we believe that suing our fans is destructive and hypocritical. We do not want to sue music fans, and we do not want to distort the law to coerce fans into conforming to a rigid digital market artificially constructed by the major labels.

- Second, we believe that the use of digital locks, frequently referred to as technological protection measures, are risky and counterproductive. We do not support using digital locks to increase the labels' control over the distribution, use and enjoyment of music, nor do we support laws that prohibit circumvention of such technological measures, including Canadian accession to the World Intellectual Property Organization's Internet Treaties. These treaties are designed to give control to major labels and take choices away from artists and consumers. Laws should protect artists and consumers, not restrictive technologies.

- Third, we strongly believe that cultural policy should support actual Canadian artists. We call on the Canadian government to firmly commit to programs that support Canadian music talent. The government should make a long-term commitment to grow support mechanisms such as the Canada Music Fund and factor, invest in music training and education, create limited tax shelters for copyright royalties, protect artists from inequalities in bargaining power and make collecting societies more transparent.

I must say that I agree with and support their comments above.

I also find Michael Geists comments on his blog, showing how the American and Canadian music industries have orchestrated and misled discussion about Canadian Copyright legislation, very illuminating. It can be found at
http://www.michaelgeist.ca/content/view/4079/125/ and I've appended it to this submission. I urge you to reject the manipulation of public discourse by the entertainment industry.

Other Misleading Statistics

Especially in the field of software copyrights, the amount of illegally copied software is vastly overstated. One of the ways this comes about is by ignoring and underestimating the use of free and open software (F.O.S.S.).I have five computers at home and work. Everyone of them but one came with proprietary software already installed. All of them had Windows replaced with Linux software, which I can download for free, and at no cost to me.

The proprietary computer software industry counts the sales of computers with Windows, then subtracts the sales of Windows software programs and concludes incorrectly that there should have been five sales of office suites and other programs and concludes incorrectly that there are five computers with illegally copied software installations. There aren't, of course, because I use Linux, and we share our programs freely with other users all over the world. (And much of it is done with the legal use of peer to peer software).

One should never conclude that a lack of sales is due to copyright infringement when there are other, far more plausible, possibilities.

Anticompetitive Copyright MisUse

Recently there has been a trend of using copyright in such a way as to prevent competition in many consumer products. We really need to stop photo-copier and printer companies from claiming that competitors making alternative toner cartridges are violating copyright because they have software installed on the cartridges to prevent competitive use. It would be like having chips in your car that forced you to use only Shell gas in your tank, for example. We need competition in toner sales, not monopolies.

In the US, the courst have found copyright misuse when copyright was misused to attempt to stifle competion. In Alcatel the Court found copyright misuse where the holder of a copyright in software licensed its use on the condition that the licensee also use it only in conjunction with the copyright holder's hardware. We need similar protection here.

It must also not be illegal, to physically modify a device in order to use competing software, games, programs, etc. It must never be illegal in Canada, to modify hardware so that you can play software not supplied by the maker of the hardware. If I buy an X-Box, the maker has no right to insist I use only games made by X-Box in it. I should be completely free to make whatever changes I want in order to play games from another manufacturer.

There are also other forms of Copyright Misuse. More disturbing is the misuse of copyright to prevent criticism or comment. One example might be the online publication by critics of unpublished records of companies, organizations and political figures. Critics sometimes get copies of documents and publish them in web sites.

The companies or organizations that they criticze then assert copyright in works, which they have not published, and which they have no intention of publishing. There is no lost revenue or profits to the copyright holder from diminished sales or licensing of the copyrighted works. In cases of public concern, the effect of an injunction is to decrease criticism and public discourse on matters of public interest. That is, the underlying purpose of copyright protection is not furthered by some such injunctions; it is undermined.

Copyright and Other Collectives

I've been aghast at reports on the way that copyright collectives have tried to find all kinds of new uses – that were never contemplated by the artists and that coincidentally require additional fees to be paid to them to use material we've already paid for. Playing a CD as background music in a dentist's office should not require additional licenses or payment. The dentist isn't broadcasting – he's playing a CD he purchased to play. And the artist has been compensated.

I'm also opposed to any collective collecting fees to the use of material freely available on the internet. I don't want to charge fees for my website, and don't want anyone else collecting a fee on my behalf, either. Surely it should be up to me to decide what fees if any, to charge for material on my website. And if I put it up and tell people they can download it for free, no collective has the right to intervene. Nor should any collective have the right to decide for themselves to collect fees on behalf of anyone who has'nt agreed to the collection.

My proposals –

In order to stand the test of time, copyright legislation needs to be clear and easy to understand.

First, let's make all copyright extend for a term of 50 years from publication or broadcast. None of this malarkey of having to figure out the date of the creator's demise, or having differing terms. for photographs, audio recordings or books. Let's make it a flat 50 years for everything. And then it reverts to the public domain.

Two, let's ban the mis-use of copyright to prevent competition in consumer products like toner cartridges.

Third, let's ban the mis-use of copyright to prevent consumers from allowing anyone to work on their products, including vehicles. No car manufacturer, for example, should be allowed to eliminate competition in auto repairs by claiming copyright on vehicle specifications and repair procedures.

Fourth, let's make the copyright act focus on broad categories and not try to micro-define everthing as it is today – because tomorrow will bring new products and technologies that will change everything.

Fifth, let's make it clear that fair dealing – copying for personal use or study is perfectly all right. What's not all right is the commercial violation of copyright. If I buy a CD it should be perfectly legal to copy it to my MP3 player, but not ok to sell copies of the CD either as CDs or online.

Sixth, let's make it clear that the legislation is permissive, not restrictive. If the act doesn't say you can't do it, you can. Give us examples of what we can do but don't restrict the possibilities in such a way that it can't deal with differing future uses.

Seventh, let's make it clear that if you hire someone to create a work, you own the copyright. If you hire a photographer to take wedding pictures, you should own the copyright on the pictures.

Eight, get rid of Crown Copyright. When municipal, provincial or federal governments create something, it should become public domain. We should be encouraging the dissemination of information, not tying it up in copyright and trying to charge more for it. Let innovation flourish.

In conclusion I urge you to look beyond the well financed and misguided attempts by the entertainment industry to mislead public copyright policy simply to protect an outdated business model, with no regard for the consequences to the Canadian artists, creators, and participants in Canadian copyrighted material.

Robert Smits,
Ladysmith, BC.