Archived - Babcock, Ben

2009 Copyright Consultation Submission
Ben Babcock <ben@tachyondecay.net>
September 8, 2009

Introduction

This submission is in the public domain and may be reproduced, distributed, or modified by anyone for any purpose.

This September I will be entering my third year at Lakehead University, in Thunder Bay, ON, where I am pursuing an education degree with the intention of teaching a secondary school level. Thus, as both a present student and future teacher, copyright law has a profound impact on the way I operate, whether as a content creator or consumer.

I believe that it is important to make copyrighted material as accessible as possible to students, in order to further their education. As much as copyright serves to protect a creator's rights, the current law needs reform in the face of new technology. Firstly, we must establish a stronger sense of fair dealing for works still in copyright. Also, it is vital that all citizens, students and otherwise, have access to legally-acquired copyright material without harmful and misguided digital locks, such as technological prevention measures (TPM) or digital rights management (DRM). Finally, the government should abolish crown copyright and work to ensure the orderly progression of copyrighted work into the public domain after a reasonable copyright term. By doing so, we can best preserve Canada's cultural heritage, as well as equip students and teachers with the tools they require to forge our future.

Fair Dealing

Focusing on copyright as a restriction is an inherently negative perspective. Copyright is a contract between creator and consumer, a way of negotiating the ways in which, and under what terms, a consumer may use a creator's work. It is in the best interests of both creators, who presumably want their work used and distributedjust under their termsand consumers, who presumably want access to as many works as possible, under fair terms.

To that end, any copyright reform should explicitly enshrine certain fair dealing rights into Canadian copyright law. These rights should encompass the territory that would be carved out by individual exemptions sought by other lobby groups, such as the proposed Internet exemption for educational purposes. Fair dealing should be permissive, not to weaken the creator's control of his or her work, but to make it easier for other people to use and enjoy that work within the terms set by the creator.

The fair dealing provision should include so-called format shifting and time shifting provisions currently absent from Canadian copyright law. I should be able to transfer music from my computer to any number of devices without breaking the law; likewise, it should be legal to record a transmitted broadcast for later personal viewing. In other words, the format of a work and the work itself may be two distinct entities, and while copyright law should protect the latter from unauthorized modification, the former should be open to modification when necessary.

Under the current law, I may indeed copy something like an audio recording for my private use, provided I pay the blank media levy on recording media such as CD-ROMs. Unfortunately, this private copying exemption covers a limited number of use cases. It assumes that I will copy the work to one of the media covered by a levysome media, notably MP3 players, are not. And while MP3 may currently rule the music format pantheon, its days are numbered; I do not want to have to purchase my music a second time just because its original format is now obsolete.

Security and Anti-Circumvention Legislation

As digital technology reduces the cost of reproducing a copyrighted work to virtually nothing, copyright holders often resort to using TPM or DRM (heretofore referred to as digital locks) to prevent modification, or even reproduction, of a copyrighted work. Unfortunately, digital locks come with severe drawbacks, and it would be shortsighted to protect and endorse the use of such security measures by adding anti-circumvention legislation to Canadian copyright law.

The economic feasibility of digital locks is questionable. Many major corporations have already begun abandoning the use of digital locks on their products, and major record labels now distribute downloads through online venues like iTunes without any digital locks. The ease with which digital locks may be circumvented (regardless of the legality of such circumvention) makes them an ineffective deterrent against piracy. Moreover, the use of digital locks to prevent pirated redistribution of copyrighted works is based on an obsolete interpretation of the role of copyright.

Copyright is no longer, if it ever was, about controlling the distribution of copyrighted works. In some ways, the overwhelming focus on distribution rights can be harmful to this discussionit marginalizes other issues, such as how people can use a copyrighted work for commercial purposes. That is what copyright law must become in the digital era: a guideline for the use of copyrighted works and not solely a proscription of redistribution. Digital locks may be used to prevent modification of copyrighted content, of course. However, this poses problems both technological and legal in nature, and it would be unwise to create anti-circumvention legislation without exploring the potential ramifications.

Firstly, digital locks can make it difficult to preserve a copyrighted work for legitimate purposes. This includes making personal backups and so-called format shifting. The lightning progression from cassette tape to compact disc to MP3 technology in the music industry has made it clear that formats may now rise and fall in the blink of a legislative eye. It would be a great loss to Canada's cultural heritage should, in the future, some works become inaccessible because we lack the capability to unlock or read their formats and encodings. At the very least, archival institutions should be allowed to circumvent digital locks for the purpose of preserving the work in their collections. However, I would prefer a more permissive attitude toward lock circumvention, one that allows all Canadians to circumvent digital locks when such measures infringe on rights granted elsewhere in copyright law. This would particularly be the case if, as myself and many others have advised, format-shifting becomes enshrined in copyright law. In that case, the law also needs to allow the circumvention of digital locks when shifting the format of a work. When not if, but when current formats become obsolete, I do not want to be breaking the law when I break open digital locks to migrate to the newest standard.

Secondly, digital locks are an unnecessary barrier to accessibility. People with perceptual disabilities may need to access a work in a different formatfor example, using text-to-speech technology to have an eBook read aloud. If the work in question is secured by a digital lock, the lock must first be circumvented. Yet few works under a digital lock come with a special accessibility key. Thus, it is not enough for any copyright legislation to include an exception for circumvention in the name of accessibility; the legislation must also allow people with perceptual disabilities, or those operating on their behalf, to break digital locks using any means necessary, or mandate that all locks come with a key. Anything less is a failure to protect the equal accessibility rights of people with perceptual disabilities.

Yet if the popularity of digital locks is on the decline, then anti-circumvention legislation no longer seems necessary. Law should never be about preserving the status quo or propping up archaic institutions. And that is exactly what digital locks are: a flirtation with the idea that we can hobble the entire premise of digital technologythe promise of infinite copies of our datain a last-ditch effort to return to the halcyon days of 1990. Digital locks have proved ineffective at preventing distribution of copyrighted works, and far more trouble than they are worth at stopping people from modifying copyrighted works. Any reform to copyright law should take a long view and strive to provide s legislation that ensures consumers will not be left out in the cold long after digital locks are dead.

The Crown and the Commons

As this very consultation demonstrates, the government is committed to engaging citizens in the making of law and policy in Parliament. Crown copyright is an unnecessary and outmoded restriction on the use of government information that hinders that sort of engagement. Ideally, government information should belong to the people, since the government is of the people and exist in the public domain (with the exception of information protected by privacy or national security concerns). While not everyone endorses the abolition of Crown copyright, I have yet to see a convincing argument in support of it. At best, Crown copyright is, like other vestiges of monarchy, mainly symbolic and unevenly applied in practise; at worst, Crown copyright is a bureaucratic obstacle to innovation with public information, particularly frustrating to a generation of people raised by the Internet to expect instantaneous, on-demand access to their data.

The public domain should not just be the place that copyrighted works go to die. There is too much negativity associated with the idea that a work's copyright expires and it enters the public domain, conjuring grave implications for whoever now benefits from the work's copyright (since a work's copyright does not expire until after its author's death, I assume the author no longer cares). The public domain is so much more than a graveyard; it is a vibrant repository of Canadian heritage and culture. As such, the government has just as much responsibility to the public domain as it does to copyright.

The idea that the passing of a work into the public domain is a negative occurrence runs counter to the very reasons copyright was first established. Originally, copyright lasted only a couple of decades, giving the creator of a work enough time to exploit it economically before moving on to the next idea. After that time, the work would enter the public domain so that everyone could exploit it as a shared piece of heritage. Now some groups wield copyright like a weapon, using it to jealously cordon off certain creations and stake heritage territory in perpetuity. Such oppressive actions are ultimately harmful, not only to Canada's heritage, but to future generations who benefit from having a diverse selection of public domain works with which they may educate themselves.

It is not enough merely to preserve the public domain as a default status accorded to works no longer under copyright. The government must take active steps to rehabilitate the public domain, to educate people about it and ensure that special cases, such as works where the author's date of death are unknown, are covered by any new legislation.

In order to achieve the balance between copyright and public domain, between creator and consumer, the government should fully embrace the notion of the commons, or the some rights reserved approach to copyright. Current copyright law automatically grants a creator all rights reserved copyright when he or she publishes a work. Some creators, while not wanting to place their work wholly in the public domain, want to preserve only some of their rights and waive the rest for the benefit of the commons. In this, creators face two difficulties: since the default assumption about a copyrighted work is that it is all rights reserved, the creator must explicitly specify a some rights reserved license for the work; also, since copyright law only codifies the first approach, the creator must rely on a third party to provide the more permissive license.

Probably the best known example of some rights reserved commons licensing is the Creative Commons organization. Originating in the United States, Creative Commons now provides licenses localized for over 50 jurisdictions. These licenses have occasionally been testedand upheldin court, but far from rigorously, and that is my main concern. It would be much better if commons licensing not necessarily Creative Commons explicitly, but just commons in generalwere codified in Canadian copyright law. With this copyright reform, the government has an opportunity to enshrine some rights reserved copyright alongside the all rights reserved version, essentially creating the best of both worlds. Creators will be able to choose among three legal optionscopyright, commons, or the public domainand know that, whatever their choice, copyright law will be on their side.

Conclusion

Above all else I would like to emphasize a call for balance. I neither want to abolish copyright nor extend its terms to ridiculous lengths. The worst trap at this pivotal period in copyright history is to assume that this is some sort of battle between content creators and content consumers, that this is a question of all-or-nothing protection and restriction. Nothing should be further from the truth. If our copyright reform is not balanced, then it is not a matter of one side or the other winning the dayin truth, both sides will lose.

What we need is choice. Alternatives. Options that allow creators and consumers alike to operate in the ongoing, contextual dialogue that so pervades the digital era we now inhabit. Neither the government nor the public wants to constantly go back to the drawing board and reformulate copyright law ever couple of years, nor should we. This is our chance to establish lasting legislation that lets creators choose exactly how they want to protect their work and consumers choose how they acquire and view copyrighted material.

Thank you for offering Canadian citizens the opportunity to have their voices heard on the issue of copyright reform.

Sincerely,

Ben Babcock
Thunder Bay, ON