Geczy, George

George Geczy
Lynden,
Ontario

September 12, 2009

Copyright Consultation — Submission

I am pleased to be able to make this submission as part of the government's ongoing Copyright Consultations. I have waited until towards the end of the public submission period as I have been very interested in reading the presentations of others, in particular the various industry and content creator groups. As both a creator and consumer of intellectual property I have a lot of interest in these issues, yet I am not so intractable in my positions so as not to be influenced by logical argument and reasonable alternatives.

I am currently co-owner of BattleGoat Studios, a PC Game Software Developer located in Ancaster, Ontario. We have released two major PC Strategy Game titles that have been translated into 7 languages and sold in retail stores in over 30 countries worldwide, and we are currently working on a third title for release in 2010. A previous company I founded, JMG Software International, released game and application software titles for a number of platforms, starting with a game title first published in 1982.

I am also the past chair of the Hamilton Chamber of Commerce Science & Technology Committee, and past chair of the Hamilton Public Library Board. I have also served on the board or organizing committees of many significant local organizations including the Industry-Education Council and the Bay Area Science & Engineering Fair.

My experience of over 25 years in the game software business has allowed me to see first-hand the issues and debates surrounding piracy, copy protection, counterfeiting, and legitimate uses. First I must state how strongly I disagree with the positions and presentations of the Entertainment Software Association (ESA) — they certainly do not represent me or most other small-to-mid sized Canadian entertainment software developers that I know, and I find their position on issues such as anti-circumvention rules to be unjustified and out of touch.

To truly meet the goals of copyright itself — fostering innovation, creativity and progress in human knowledge — it is essential to create a system that is balanced and fair. "Fairness" not only promotes compliance — consumers are known to be more likely to pay for content when the terms are deemed to be fair — but it also helps promote innovation with new technologies and new applications for existing knowledge properties.

I also disagree with presentations from the Canadian Chamber of Commerce — I have been a local Chamber of Commerce member for over twenty years, and as mentioned I have also worked with my local Chamber on many technology-related issues, including chairing the Hamilton Chamber's Science & Technology Committee. While the Chamber is right to highlight concerns such as enforcement against counterfeit goods, they then fall into the trap of focusing many recommendations on issues that serve no other purpose than to unbalance copyright laws too much in favour of large media corporations.

I should not downplay the fact that there are real challenges today in protecting intellectual property — the scourge of counterfeiting is one that hurts both consumers and creators alike, with consumers buying product that they believe to be real and creators having their income from paying customers literally stolen from them. It is interesting to note that the most common "solutions" proposed by large media corporations — TPMs, easier identification of end-users of unauthorized material, notice-and-takedown, etc. — provide not a single element that would help to control or prosecute against counterfeiting. If creating and distributing for-profit counterfeit product is already illegal as it is now, an additional law to make breaking the TPM around the original goods illegal is not going to have any further effect on the counterfeiting activity. Even more so when we recognize the fact that most counterfeit goods come from offshore producers. It is essential that a balanced copyright regime differentiate between regulations aimed at controlling illegal for-profit activities, such as counterfeiting, from the actions of individuals, for instance format-shifting products they have already purchased.

Rather than answer the specific five questions that the Copyright Consultation process has suggested, I will instead put forward two basic elements that I believe future Copyright legislation must address, as these elements in many ways apply to all five questions that were proposed.

1) Exclude any form of Anti-Circumvention restrictions. Research and evidence from ten years of DMCA protection in the United States has shown that Anti-Circumvention regulations not only have no significant effect in preventing piracy and other forms of copyright infringement, but they also have unintended side-effects that have been used to prevent fair-use of materials, hinder research, stifle criticism and block news reporting. In my own industry (entertainment software), when mega-publisher Electronic Arts released the game "Spore" with significant and onerous copy protection (TPM), the gaming community angrily responded by making "Spore" the most pirated game of all time. When EA later released "Sims 3" without the same forms of extreme TPMs, it became their "most successful PC game launch ever". The products of my own studio (which feature no TPMs) have no greater level of piracy than other titles that make extensive use of copy protection.

Yet beyond the facts that TPMs can be of little value and anti-circumvention rules are ineffective in preventing piracy, there is the fact that anti-circumvention can be very effective at preventing legitimate uses. Fair Dealing for research or private study is not possible if those uses are prevented by TPM's that cannot be removed. Format shifting becomes impossible, including shifting to newer standards or alternate presentation methods (such as reading for the blind). Legal resale of works is often prevented. Preservation is also an issue — much of my library of computer games, collected over 30 years, is in formats that are no longer readable, and made by companies that are no longer in business. To play these games — and more so, to preserve vast tracts of our cultural output and heritage — requires conversion to modern formats and protection from the "disintegration" of the original media (copy-protections and all).

While some other proposals have suggested methods to make Anti-Circumvention rules "palatable", such as exception lists, right-of-access rules, regulated access to circumvention devices/software, and so on, I strongly believe that the core protections of copyright itself are sufficient — it is already illegal to sell a copy of a Hollywood DVD, there is no need for a new rule to make it "even more illegal". TPMs are the right of content producers, but circumvention must remain the right of individual consumers when those TPM's prevent legal and fair uses of products consumers have purchased — it is part of the "balance" that is essential in fair copyright.

2) Preserve and protect a reasonable "Fair Dealing" provision. The existing law provides specific fair-dealing categories — not only must these be maintained, but they should also be made flexible enough to deal with new technologies. Professor Michael Geist has suggested the wording "such as" be included in legislation to allow courts the flexibility to measure future technologies and uses, but at the very least Fair Dealing protection for Education and personal uses (format shifting, backup of content) must be added.

As a content creator, I have found the general protections offered by copyright law to be sufficient, and I certainly do not seek new powers that remove rights of the consumers of my products. In fact I agree with (and am inspired by) the consultation presentations by content creator groups such as the Songwriters Association of Canada and the Writer's Guild of Canada, groups which oppose the strong new measures favoured by international media organizations and instead propose finding new and creative solutions to the challenges faced by the changing digital landscape.

Beyond my two primary concerns, I would also hope that any new legislation does not regress copyright in any other areas — for example, moving to a "notice and takedown" system would bring with it the flaws already demonstrated in the United States, such as the use of such a system as a form of censorship of political, critical and independent free speech. A "notice and notice" model fits with our respect of due process and balance. Another area where there is no need for radical change is that of copyright term — the Berne Convention requirement of life plus 50 years is already more than sufficient to "encourage creativity" and foster the other goals of copyright protection.

It has been 8 years almost to the day since my submission to the Government's first Copyright Consultations, and my desire for balance and protection of consumer rights remain as strong today as they were then. Bills C-60 and C-61 were both disappointing in that they ignored so much of the feedback and input of Canadians that the first consultation produced, I am hopeful that this current consultation effort will result in legislation that is far more balanced and, in the end, fair to all the participants of our Intellectual Property system, from the content creators to the consumers.

George Geczy,
Ancaster,
Ontario,
Canada.