Submission to the Canadian Copyright Consultations
September 10, 2009
To: The Right Honourable Stephen Harper
To: The Honourable Tony Clement
To: The Honourable James Moore

CC: Marc Garneau (Liberal Industry critic)
CC: Pablo Rodriguez (Liberal Heritage critic)
CC: Charlie Angus (NDP Digital Affairs Critic)
CC: Peter Braid (MP, Kitchener-Waterloo)

Dear Ministers,

I am a Canadian who is concerned about copyright and its impact on many areas of society. These include consumer choice (format shifting, time shifting, and interoperability); the chilling effect that a too-strict copyright regime will have on Canadian creativity; that internet service providers should neither be policemen nor tax collectors for the existing rights holders; that a new copyright regime should be technologically neutral; that fair dealing must be protected; and that ACTA must not over-ride or dictate our made-in-Canada approach to copyright reform. I expand on each of these points in the sections that follow.

Personal use, interoperability, time and format shifting, and digital locks

I own an extensive collection of legally purchased movies on VHS and DVD. I also own an extensive collection of music on legally purchased LPs, CDs and digital downloads. I should have the right to transfer the content of these various media to any other media of my choice; that is, format shifting for personal use must be specifically allowed. It makes no sense that the consumer should be expected to pay an additional fee simply to listen to the content of a CD they have purchased, on their iPod. We are talking about one listener, listening to the same content in different situations: in the car on CD, on their iPod while jogging, or in their living room streamed from their computer. Or we may be talking about one viewer, watching a movie on their home theatre system on DVD, or watching that same movie on the train on their iPod.

Unfortunately, digital locks (TPM and/or DRM) on some of this content, especially VHS tapes and DVDs, prevent me from doing this. Eventually VHS players will take their place in history along side the 78 rpm record and the 8-track tape. Before that happens I should be able to transfer this content to my computer, digital video recorder, Apple TV, iPod, or any other format I choose so that I may continue to enjoy the content I have purchased. To this end it is essential that Canadian copyright laws must not include an all-encompassing prohibition on the development and manufacturing of circumvention devices and technologies, commercial trade of circumvention devices and technologies, the possession and/or utilization of any device or technology that can circumvent a TPM or DRM for a non-infringing purpose or otherwise lawful activity such as fair dealing, interoperability, time and format shifting.

While the content industries may prefer that consumers be forced to buy the same content again and again as technologies change, it is not the place of the government to force this business model on consumers. Let the market decide if a new technology (e.g. DVD versus VHS, CD versus LP) is compelling enough for consumers to decide if they wish to “upgrade” their content. If a consumer is happy with the quality provided by, for example, their VHS tapes, but wish to view that content using, for example, their iPod, that should be their choice. Neither legislation nor digital locks should prevent them from exercising that choice.

Similarly, I cannot understand the logic that says that the content creators must receive additional payments when a consumer wants to listen to the music they legally purchased on CD, on their iPod. This is the logic behind the continuation of the levy on blank recording media, and current ruminations about adding a similar levy to portable MP3 players such as the iPod. It is no longer about people making copies and giving those copies to their friends: this was the argument when the blank media levy was first introduced for cassettes and later extended to CDRs. Music files are shared on the internet. Virtually no-one burns CDs to give to their friends, although they may burn a CD of a digital download they have legally purchased in order to listen to that music in their car.

Once format shifting is specifically allowed, the levy on blank recording media (cassettes and CDRs) must be removed. The “lost sales” that this levy is supposed to offset do not exist, unless you take the view that the consumer must buy the same content again and again in order to enjoy that content through the use of a different device or technology.

Copyright legislation that specifically allows format shifting by consumers for personal non-infringing use is also good for content creators. For example, an author may produce an independent movie and make it available through their web site on DVD. But the audience for that movie also includes people who would prefer to watch it on their iPod, computer, Apple TV, or other formats. To reach this market the author must deal with the distributors who control access to those formats. This is a lot of (non-creative) work that the author needs to do, and each of these distributors will want a cut of the revenue. The author would realize greater sales at lower per-unit cost – greater profit – if consumers could just buy the DVD and then easily transfer it to the medium of their choice.

Digital locks are also bad for creators. They put control of the creative work in the hands of those who licence the digital locks, not the creators. The author is left with less control over the use of their work since they must accept without variance the restrictions imposed by the digital locks.

Digital locks (TPM and/or DRM) have failed to prevent wholesale counterfeiting. The criminals who engage in this activity have the money and means to break the locks in order to create their counterfeit copies. These same digital locks prevent consumers from engaging in the legal activities identified above.

Copyright, financial incentives, and creativity

The notion – which seems to be at the centre of much of the current debate – that financial compensation is the only (or at least the major) factor in stimulating authors to create new works, is shown to be wrong by the explosion of works being created and shared on the internet for free, by amateurs. These authors are inspired by the culture they find around them: a culture that is more accessible than ever before thanks to the internet and the world wide web. Limiting access to this culture (with ever-longer copyright terms, digital locks and restrictions on fair dealing) will not encourage more creativity – it will do just the opposite.

This is not to say that authors who wish to copyright and control the distribution of their creations and make a living doing so, should not be given the opportunity to do so. Copyright legislation that is fair to both creators and consumers can meet this goal, without restricting consumer choice or stifling creativity.

Internet service providers and liability for subscriber actions

Amendments to the Copyright Act seeking to add provisions relating to the liability of Internet intermediaries and subscriber actions should take a “notice and notice” approach that will provide the best balance between the protection of intellectual property rights and the fundamental rights of individual and academic expression.

Internet intermediaries must not be held liable for consumer actions. It is not their place to monitor every subscriber's email, web site, blog, etc. for infringing content, nor is it their place to collect a levy to offset the supposed “lost sales” due to file sharing. Service providers should be neither policemen nor tax collectors for the existing rights holders. Service providers should be focused on helping ordinary Canadians use the Internet more easily and more effectively.

Technological neutrality

The concept of technological neutrality is essential so that Canada’s copyright regime will withstand the test of time. The Government must not integrate protection for specific technologies or business models into any amendments to the Copyright Act (e.g. all-encompassing prohibition of circumvention devices and technologies). Any new legislation should be technologically-neutral to maintain flexibility into the future.

Fair dealing

To further foster innovation, creativity, competition and investment in Canada, it is important to expand and protect the doctrine of fair dealing. Fair dealing will provide any new legislation with the flexibility to adapt to future business models, new technologies and new forms of creativity.

The Anti-Counterfeiting Trade Agreement

Finally, I strongly believe that as a member country actively engaged in the Anti-Counterfeiting Trade Agreement (ACTA) Canada should not allow this non-transparent trade agreement to override the democratic process and legal framework of the Canadian domestic Copyright Act. While supposedly designed to address counterfeit physical goods as well as Internet distribution and information technology, ACTA provisions may prove to over-ride any type of domestic copyright laws and negate the entire copyright reform process.

Summary and Conclusion

I am not anti-copyright. I am in favour of fair copyright. I support copyright legislation that enables and empowers creators and consumers. I do not support copyright legislation that props up the outdated business models of the copyright industry at the expense of both the creators and the consumers.

Fortunately, there remains time and opportunity for Canada to draft legislation to ensure that the rights, values and interests of all Canadians are reflected in a truly made-in-Canada approach to copyright reform. We have the opportunity to get it right this time. I sincerely hope that the public consultations on copyright that the Government is engaged in will open up the development of Canadian copyright policy to more than just traditional lobby groups and the corporate interests that have directed policies in the past.

Sincerely,

Bill Wharrie