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To: Hon. Tony Clement and Hon. James Moore
Dear Ministers Clement and Moore,
As a professor who has published research on copyright, I am writing to state that the Canadian government's proposed copyright legislation criminalizes fair dealing and the everyday uses of media and cultural products by citizens, in favour of entrenching control over cultural production on behalf of a very few corporate business interests. Your proposed legislation destroys the traditional balance between vendors and users: user rights should be at least equal to vendors' rights — if not take precedence over them, as has been suggested by Canadian supreme court rulings that uphold the legality of file downloading for non-commercial personal uses.
While some aspects of the proposed legislation propose greater clarity and protection of fair-dealing rights concerning research, teaching, and review uses of intellectual property (IP), your legislation's proposed anti-circumvention provisions — e.g. penalties for circumventing technological protection measures (TPMs, a.k.a "digital locks"), penalties for format shifting, penalties for the non-commercial copying and retention of digital documents for personal use and study — would render many of those gains impracticable. What the anti-circumvention clauses propose to protect is not copyright, but proprietary technologies that major corporate cultural producers are increasingly building into the products themselves. TPMs do not control just copying, but numerous forms of legitimate general use. Copyright legislation that protects TPMs is thus not a protection of IP, but a protection of private controls on the public uses of IP.
The government's proposed copyright legislation fails to adequately address the cultural economic realities of Canadian citizens' and educators' everyday media usage, and instead reinforces punitive models of IP law that several major studies (like those of Ottawa law professor Michael Geist) suggest are opportunistic exercises to increase the corporate control of culture, and thus to limit the parameters of permissible public discourse. Such legislation ultimately threatens the richness, diversity, and economic competitiveness of Canadian cultural production.
However, I write not only to criticize the proposed legislation, but also to suggest innovative policy alternatives that would genuinely stimulate domestic cultural production and investment. I have in mind Lawrence Lessig's book Free Culture (freely available online at http://www.free-culture.cc/freeculture.pdf – PDF Version, 248 MB, 352 pages), which concludes with policy suggestions that strike a balance of IP protection and public access, to maintain culture as capital and resource for future creative work. See especially pages 282-304 (or 288-310 in PDF pagination).
I thank you for considering this submission and hope your government will more realistically and extensively consider the interests of Canadian citizens, media users, and educators — not just those of corporate content vendors — in drafting new IP policies.
Dr. Mark A. McCutcheon
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