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Dear Ministers,

As a software developer, I have a vested interest in our copyright laws. Not only do they protect my own work, but they also protect the work of those who use the software I work on.

I believe, however, that the best way to ensure our copyright remains strong is to ensure it does not get extended too far. Extremist copyright positions may look fine on paper, but in reality they engender disrespect for the law. If one outlaws commonly accepted practices the result is not a populace that ceases those practices, but a populace that will cease to obey the law.

I see two potential pitfalls with any new copyright legislation.

The first is with fair-dealing. The spirit of Fair Dealing is to match the common man's concept of what is a reasonable use of copyrighted material with what the law states. Bill C61 at first glance seems to be a good step in this direction — format shifting, time shifting, etc, are all laid out in terms that would seem reasonable to the layman. But in practical terms all of those portions of the bill could have been omitted — by allowing the copyright holder to refuse to grant these "rights", one pretty much guarantees they will never exist in practice. Fair dealing rights should not be rescinded by adding a few lines of text to the package of the CD or DVD. I would hope that any new legislation does not perform this distasteful bait-and-switch: to pretend to offer expanded fair dealing but to have fine print that allows it to be canceled unilaterally by the copyright holder.

The second is with Technology Protection Measures (TPM), also commonly known as DRM. Bill C61 had the misstep of enacting special status to these measures by outlawing the circumvention of the measures. This is a very dangerous slope to tread on. Plenty of evidence south of the border has shown how the DMCA has been abused to trample on the American Fair Use rights. On the other hand, the TPMs have proven very ineffective at actually stopping copying. The DeCSS of DVDs is so routinely bypassed that some jurisdications have disqualified it as a TPM as it is too ineffective. The marketplace has seen a shift to MP3s as the distribution format, suggesting even the rights holders are no longer concerned about the risk of secondary copying. As a rights holder, illegal copying is illegal copying, regardless of whether a TPM was violated in the process. Indeed, since illegal sources of the content come already stripped of TPMs, we have the unusual situation where this law only applies to those who purchased the official product, and exists only to hinder their ability to exercise any fair dealing style rights they have.

A lot of legislation over the last hundred years has focused on preventing natural monopolies from squashing potential competition. We see these laws in the defense of reverse engineering, in the defense of the creation of unapproved but compatible add-ons, etc. TPMs represent another chance for monopolies to crush secondary markets. By adding a simple TPM to their interface protocols they can misuse the weight of this law to prevent any other company from making an unlicensed add-on to their product. This is quite contrary to the stated goal of TPMs — to protect copying of the original work. As such, even if implemented, no doubt in another ten or twenty years case law would slowly overthrow these misuses. However, there is no need to waste a few decades of development. Instead the whole concept of TPMs can be left out of any proposed legislation. By excising this proposed component of copyright law, which has proven a failure in other jurisdictions, Canada can save its courts many thousands of hours of time.

To encourage innovation in Canada we should modernize our copyright law. We should make it clear to new companies where they will stand on the copyright spectrum. Innovation is not achieved by catering to the demands of established players — the last they want is innovation — it is by ensuring that new players will find the law in accordance with the expectations of the Canadian populace. We should expand Fair Dealing to match or exceed the rights available in the US. We should make it clear that TPMs have no special status. We should recognize that with the rise of the internet, a lot of behaviour that was traditionally private and thus, while technically illegal, could be ignored, has become public. Ideally we can find a way to carve out a safe harbour for such amateur expressions of creativity.

Thank you for providing the chance for my opinion to be heard,

Jeff Lait
Toronto,
Ontario,
Canada