Archived - Potucek, Dr. Rudolf

To whom it may concern!

I have been watching the development of copyright south of the border with growning concern and I sincerely hope Canada can avoid similar missteps. As such, here are my thoughts for the consultation:

1. How do Canada's copyright laws affect you? How should existing laws be modernized?

During my student days I have run afoul the fair use portion of Canadian copyright occasionally for very rare journal articles, but in truth, Canadian copyright laws at this point do not significantly affect me in negative ways. U.S. copyright laws, however, already affect me in significant negative ways, such as the crippling of software on various devices I "own", such as my Wii or my phone, or in limiting either my choices to "either" obtaining software training "or" collaborating with people in countries that the U.S. policy of the day deems to shun.

Thus, I believe that whatever reforms Canadian copyright law may undergo, it is crucial that they focus on the infringement of the "creative" components of a work, and only implement a minimum protection for commercial activities such as protecting the format in which a creative work is distributed. I specifically believe that issues such as reverse engineering a technological measure such as Digital Rights Management (DRM) is properly and appropriately covered under Patent law with appropriate allowances for fair use and innovation.

I also believe that whatever reforms are put into law should not have the same insidious reach outside our national boundaries that many of the US laws have. Such international reach as is required is already addressed as part of overarching treaties such as the Berne Convention and various WIPO and WTO treaties, the implementation of which should be left up to each country individually.

2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?
Many reasons exist for strengthening or weakening the impact of copyright law and I am sure other people have done a better job considering these before me. Independent of this, I believe that a sensible law going forward should focus on two things: (1) what constitutes an infringement of the actual creative work, not the means by which this infringement is achieved, and (2) striking a reasonable balance between the creative interests of the author, the commercial interests of the author, and the negative socio-economic impact of dealing with infringement.

I believe that copyright as put forward at the time of the Berne Convention to protect "individual" creators, was never intended to cover and strengthen the sort of commercial interests that the music and film industry are using copyright law for. There needs to be a balance between the strength of the protection (monopoly vs. bragging rights) and the duration of the protection (10-20 years for patents vs. ca. 100 years for copyrights). I believe that the U.S. has shown us a bad path by combining monopolistic protections with long protection durations, a path that is ultimately concentrating control over creative power in the hands of corporations whose revenues are already significant fractions of a national budget, but who have no social incentive or obligation to foster future creativity in the form of grants or social programs. Given the treaty limitations on the duration of copyright imposed by the Berne Convention. I believe the commercial component of future Canadian Copyright law should be "weakened" at least by keeping penalties for infringement reasonable low.

I also believe that the lawsuits fought by the music industry in the U.S. are setting a very negative precedent for the socio-economic impact of exceedingly strong copyright laws: the not insignificant cost of "discovery" of infringement is levied on ISPs; statutory damages for copyright infringement in the U.S. are currently $80,000 per infringed song, thus infringement on even a single album would bankrupt the average household; finally the again not insignificant cost of prosecution and enforcement is ultimately carried by the people of Canada in the form of court costs, personal bankruptcies, and prison terms. This is a very clear indication that with the extremely long protection terms made available to copyright holders, it is essential to the interests of all Canadians that low statutory maximum fines be put into law, be it per infringement or as a fraction of personal net worth.

3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

I believe that innovation happens in small steps ("standing on the shoulders of giants"). As such I believe that the sort of fair use exemptions provided by Patent law, most notably the ability to reverse-engineer and modify anything for the purpose of innovation and improvement, is importatnt to foster creativity. I believe similar considerations should be used in copyright laws. In contrast I believe that protections such as provided by the U.S. DMCA are stifling to innovation while not actually addressing the issue of infringement.

I believe that liability to service providers should be limited, and that either the term of copyright protection should be shortened to be commesurate to the commercial impact (see Patent laws) or the economic impact of copyright infringement should be drastically limited to take into account the long duration of the protection.

4. What sorts of copyright changes do you believe would best foster competition and investment in Canada?

Competition is fostered by the absence of controls while investment is fostered by the protection of profits, generally opposing goals as far as Copyright is concerned. This again highlights the need to strike a balance in copyright. However, investment based on protectionism is likely to come from outside Canada, implicitly also moving profits to outside Canada. Thus, in the interest of Canadians, this balance should be skewed towards fostering competition over foreign investment.

5. What kinds of changes would best position Canada as a leader in the global, digital economy?

The digital economy is based on two things: (1) providing a fast and cheap system for replication and resale of data worldwide at practically no overhead cost and (2) the provision of goods and services to remote customers at prices comparable to local provision of the same goods and services to the local customer. Neither is really an issue of copyright.

However, with the understanding that profits in the digital economy derive from the massive scale of distribution rather than the per-item markup of small scale classical economy, I believe that in order for Canada to become a leader in the digital economy it is essential to provide a framework for authors to easily assert their authorship, for resellers to easily obtain reproduction rights, and for customers to acquire licenses for the possession of the copyrighted work in both the original form and any derived form they choose to convert it into for personal use. It seems crucial to me to minimize the protections suggested by the DMCA and the WIPO internet directives on the control granted to authors over derivative works and the formats in which end-users consume their work.

Sincerely yours,

Dr. Rudolf Potucek