Layton, Warren

My name is Warren Layton. I am a systems librarian and in the past I have also been a software engineer and a graduate student. In all of those pursuits, copyright has affected my personal and professional lives.

Instead of answering the five suggested questions in order, I wish to keep this submission brief by quickly highlighting five points that I think copyright reform in Canada should include:

1) The current copyright term of "life of the author plus fifty years" should not be extended.

Copyright is a balance between benefiting the rights holder by restricting the public's rights to their works versus the benefit of society through easy access to public domain materials. The experience in the United States, where copyright terms have been extended repeatedly, has stifled the growth of the public domain and any new works that would make use of freely available material.

At the very least, the current term of "life of the author plus fifty years" in Canada's current Copyright Act should be maintained to keep the public domain a relevant source of material for new creators. There may even be a case for reducing the term length, given the more rapid means of dissemination which continue to become available to creators.

2) Any anti-circumvention provisions added to the Copyright Act need to be tied to copyright infringement.

Canadians should not have to worry about breaking a digital lock when accessing a work already in the public domain, nor when exercising their fair dealing rights. The problem with Bill C-61 was primarily that the anti-circumvention provision that was proposed trumped any user rights, much like the Digital Millennium Copyright Act in the United States. There are many examples of the imbalance caused by that US legislation. In 2001, a programmer was arrested and sued for unlocking a digital copy of Alice in Wonderland, a work in the public domain. Princeton's Ed Felton was threatened with legal action for attempting to present his security research at a conference, again without any copyright infringement involved. To be fair, anti-circumvention provisions must apply only when there is copyright infringement and not just the breaking of a digital lock or other technical protection measure (TPM).

There should also be no ban on any technologies that can circumvent a TPM. As a librarian, I see the need for such technologies when providing access to works to the visually impaired (to give just one example).

3) Fair dealing provisions need to be expanded and clarified.

Users should have a better idea of what they can and cannot do with copyrighted works. The law currently limits fair dealing to a finite number of activities, many of which are ambiguous ("research" and "private study", for instance), while ignoring many activities that have been common practice for decades (e.g., recording a television show for later viewing).

The current fair dealing provisions should be expanded to include time-shifting, format-shifting, parody, and teaching activities. However, simply including these as discrete exceptions will not help the Copyright Act 's longevity. As others (such as Michael Geist) have said, it would be better to add the words "such as" to the current provision. Such a change would make sure that the fair dealing provision is able to stand the tests of time and technological change.

Additionally, the example of CCH vs. Law Society of Upper Canada and the "tests" suggested by the Supreme Court in that case can help determine the extent of fair dealing should be considered as more sustainable and flexible alternative to the current exceptions within the Act. As the Court stated: "whether something is fair is a question of fact and depends on the facts of each case." The analysis done by the Court (the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the dealing, and the effect of the dealing on the work) provide a guideline for how fair dealing can be expanded to replace the many exceptions (for teaching, libraries, etc.) in the current Copyright Act to make it simpler. This will help both rights holders and users understand more clearly their rights under the Act.

4) Private copying levies, if adopted at all, need to be carefully considered. The Private Copying Levy should be dropped.

I have a difficult time understanding how levies on blank CDs and other media actually make their way to the artists whose works may be copied onto them. I am very skeptical of collectives that collect on the behalf of individual artists or rights holders because there doesn't appear to be any transparency on how the money is distributed or how the collectives could ever determine how to fairly compensate artists. All the money appears to go only to the most popular artists, thereby offering no compensation or support for up-and-coming creators. Worse still is the fact that such levies are tied to particular media and technologies, which become obsolete and/or provide a distorted picture of the sales and broadcasts of copyrighted works.

A good example is the Private Copying Levy which should be removed from the Copyright Act. It is already out of date as it applies only to specific types of media and does not take into consideration other possible uses of the media to which it applies (e.g., CD-Rs can be used for data backups as well as audio recording). There is also no indication that the levy has properly compensated musicians as it is based on radio airplay and commercial sales samples. These statistics provide only a fraction (and a decreasing one at that) of the music publicly broadcast and privately sold.

5) Abolish Crown Copyright and issue government works directly into the public domain.

Canadian citizens need to know that they are free to copy, discuss, and disseminate government information without any concern of copyright violation. In the United States, all government works are immediately placed in the public domain and I believe that Canada should follow that example. Although I have am not familiar with any cases where Crown Copyright was enforced to the detriment of its free dissemination, as a citizen I feel that its existence implies the restriction of my rights to freely distribute it for any purposes. To promote democracy and government transparency, Crown Copyright should be abolished.

These are the main issues that are of concern to me in my profession and in my personal usage of copyrighted works. With the exception of the first point about the duration of copyright terms, Bill C-61, tabled in June 2008, went against the changes I mentioned above. I would rather the government make changes suggested above than attempt to re-introduce Bill C-61 or some likeness of it.

Finally, I would like to quickly note that others have contributed more detailed submissions related the above points. In particular, I would like to point to the contributions of Michael Geist and Laura J. Murray to this consultation process, which largely echo my own position.

Sincerely,
Warren Layton
Ottawa, ON,