Archived - McMullen, Greg

Introduction

My name is Greg McMullen, and I live in Vancouver, BC. This spring I finished the requirements for my JD at the University of British Columbia in Vancouver, and will be convocating in November 2009. On September 14, I will begin an articling position with the British Columbia Civil Liberties Association.

Over the years I have interacted with copyright as both a producer and a consumer of copyrighted materials, as a student, a researcher, a writer, a journalist, and a photographer.

I see great promise in this opportunity to modernize Canada’s copyright laws. It is a chance to help shape Canada’s future in the next century, protecting Canadian innovation in technology, cutting edge culture, and Canadians’ rights to freedom of expression and privacy.

Recommendations

… for drafting copyright legislation:

Copyright reform should be technologically neutral. The past century has seen many disruptive technologies, but innovative use of these technologies have made us happier, wealthier, and more creative. Old business models might not make sense in the new era, but we must give our innovators and creators credit—they will adapt, and the new technologies will expand their audiences and their profits.

Copyright legislation that targets specific technologies will have two effects. First, it will limit innovation and leave Canada behind in the digital world. Secondly, it will result in legislation that quickly becomes outmoded as technologies change. Both outcomes must be avoided for Canada to be a leader in the 21st century.

Fair dealing should be recognized and expanded. Canada’s current copyright rules recognize limited exceptions for “fair dealing” in certain circumstances. These are far narrower than exceptions made in the United States under “fair use”, which includes things like parody, artistic expression, political comment, education, and review. The Canadian concept of fair dealing must be clarified and expanded to allow innovative use of materials, cutting edge education and research, and a vibrant public sphere.

Crown copyright should be abolished. Canadians have already paid once for the creation of governmental materials like statutes, governmental reports, and parliamentary video and transcripts. By relinquishing its copyright claim on these materials, the Government of Canada and provincial governments could improve access to information, increase transparency, and truly embrace digital interaction with citizens.

… for dealing with infringement:

Protect rights holders, internet providers, and freedom of expression with a notice-and-notice system. One of the highlights of Bill C-61 was the system of notice-and-notice (n-n) for copyright infringers, as opposed to the notice-and-takedown (n-t) system used in the United States’ DMCA. Both n-n and n-t are set in motion by a complaint about infringing material from a rights holder to the ISP hosting the material. Under n-t, the ISP in question must remove the infringing material immediately to escape liability for copyright infringement. In the US experience, there have been many instances of false notice being filed, but the counter-notice system is complicated and intimidating for individuals. The n-n system is a much more equitable approach. ISPs notify the individual whose activities have given rise to the notice, allowing that individual to take appropriate action rather than having the choice made for them.

Protect ISPs from liability with “safe harbour” provisions. An important part of both notice-and-notice and notice-and-takedown is the “safe harbour” granted to ISPs who respond properly to a notice. Whichever system finds its way into Canadian law, a safe harbour provision must be included to both encourage cooperation from ISPs and to discourage preemptive censorship by ISPs seeking to avoid liability.

Internet access is too important to adopt a “three strikes” policy. The internet is becoming a critical part of the day to day life of most Canadians. Online banking, governmental forms, personal communications, work, entertainment, and creativity all depend on broadband internet access. While copyright infringement is a serious issue, any action taken against infringers must not cut off their access to internet, especially not without judicial oversight and without the right to an appeas process. There are many other legal tools that would create massive disincentives to repeat offenders without cutting them out of mainstream Canadian society.

… for circumvention of technological protection measures:

Avoid overly broad anti-circumvention provisions. Anti-circumvention refers to laws designed to grant privilege to technological protection measures (TPMs), also known as Digital Rights Management (DRM). These measures are designed to prevent unauthorized copying or display of protected materials. Over the past decade, DRM has become common in Canadian households, on DVDs, music purchased online, video game consoles, and countless other electronic devices and digital media.

Though anti-circumvention provisions may be required to ratify WIPO, these provisions should not mirror the failed approach in the U.S. DMCA. The U.S. experience with the DMCA shows that anti-circumvention laws do not slow copyright infringement, but instead harm law-abiding citizens. The problems with DRM and anti-circumvention are numerous, and have been well chronicled by copyright activists, consumer rights groups, accessibility groups, educators, librarians, and even creators’ groups.

Ideally, these problems can be avoided by making anti-circumvention provisions apply only to circumvention for the purposes of infringement. Otherwise, broad exceptions must be written into law for the creation of backups of digital media, breaking DRM to allow access to materials for the disabled, time and platform shifting, and to insure privacy, amongst others.

Avoid the criminalization of tools for circumvention. Even if new legislation includes broad bans on circumvention of TPMs and DRM, the tools used to circumvent must not be criminalized. These tools are essential for individuals to take advantage of any exceptions to anti-circumvention provisions. Creation of circumvention tools is also essential to security research. If computer science wizards risk criminal sanctions when poking and prodding the latest TPMs, security will suffer because they simply will not continue their work.

Conclusions

I appreciate this opportunity to be involved in shaping the future of Canadian copyright law. The consultation as a whole has been of great value, and the submissions I have read show that Canadians are eager to become more involved in the legislative process. I hope that input from the public will continue to be considered once a bill has been put forward.