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COPYRIGHT REFORM PROCESS
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.
Submission from Avi Cherry received on July 24, 2001 7:39 PM via e-mail
Subject: Look to the South for an example of what NOT to do
I'm sure nobody involved in Canadian Copyright reform could fail to notice what is happening right now in the US. It's
utter madness. A foreigner has been arrested for giving a lecture about a software product that is perfectly legal where
he lives (Russia). He is held on criminal charges and, to my knowledge, has not even been allowed consultation with the
Russian embassy. And why? The US government passed a law that gave an unprecedented amount of power to the
interests of large corporations at the expense of the the rights of the individual. This law makes it illegal in the US to create
tools that can be used to counteract copyright controls, regardless of their non-infringing purposes. This law even makes it
illegal to discuss how to counteract copyright controls. And judging from Canada's past record in blindly following the lead
of the United States, a law like this may be coming to Canada today.
Here are some links in case you haven't been following the situation closely:
http://cnn.com/2001/TECH/internet/07/17/hacker.arrest.reut/index.html http://www.cnn.com/2001/LAW/07/20/ashcroft.cybercrime.ap/index.html http://www.cnn.com/2001/TECH/internet/07/23/hacker.arrest.reut/index.html http://www.eff.org/IP/DMCA/US_v_Sklyarov/20010717_eff_sklyarov_pr.html
In fact, the EFF (Electronic Frontier Foundation) has a lot to say about the DMCA: http://www.eff.org/IP/DMCA/US_v_Sklyarov/
I am relieved, in a way, that the fact that it is not possible to restrict circumvention technologies without also preventing acts that are otherwise 'fair use' is being acknowledged at least in "CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES", section 4.2:
The departments have considered the possibility of restricting or prohibiting the traffic in circumvention devices, while at the same time permitting devices that have, as their primary purpose, an activity that qualifies as legitimate, such as the enjoyment of an exception or access to material in the public domain. The difficulty is that devices which are suited to infringing uses are, by and large, equally suited to non-infringing uses. For example, a device used to circumvent a measure that prevents unauthorized copying will not distinguish between materials that continue to benefit from copyright protection from those that have fallen into the public domain.
Under these circumstances, the departments question whether it is possible to establish a legal framework which, on the one hand covers virtually all activities that undermine the use of technological measures, but at the same time continues to reflect the policy balance currently set out in the Act. Such a change in the Copyright Act could potentially result in a new right of access, the scope of which goes well beyond any existing right, and would represent a fundamental shift in Canadian copyright policy. It could serve to transform a measure designed for protection into a means of impeding legitimate uses. In essence, a change of this nature would be tantamount to bringing within the realm of copyright law, matters (e.g., restrictions on use) which may be more properly within the purview of contract law. Given the rate at which the technology underlying protection measures is changing, it is difficult, under present circumstances, to evaluate the public policy implications of such a step. Perhaps the role of technological changes warrants a careful study to examine what will be the dimensions of the intersection of anti-circumvention measures with the current Act.
I could not agree more with these two paragraphs. The fact of the matter is that effective content controls, controls that allow the viewer or user of a copyrighted work to experience the content without being able to copy and redistribute it, is a unreachable goal. This is because any device or software that is used to view a 'content controlled' piece of media must have the method to decrypt or decode the content built into it. It can be made impractical or difficult, but never for reasons of computational difficulty. It is not the same type of problem as encryption technologies, where only the receiver and possibly the sender have the keys to be able to decode the message, and the further propagation of the message after it has been decrypted or decoded is not restricted (though there are products that try to combine the two strategies). Coming up with a real-world analog to this type of content restriction brings only absurd examples to mind. Here's one. How about a sculpture sold inside of a cardboard box with only a tiny slit to view it through, making it impractical to photograph, or view well enough to make a copy of. Sound absurd yet? Now imagine that a law has made it illegal to remove the box, because the box is helping to enforce copyright protections of the artist. And finally, take it one step further and make it illegal to discuss how to open these boxes or to sell utility knives that are designed to be able to penetrate the walls of the box.
Now, take this same analogy to the US vs. Sklyarov case. Publishers are using Adobe's e-Book technology to distribute their copyrighted works. Imagine that you purchase an e-Book from a publisher. You now have a legitimate copy of that work in your possession. What if you want to print out your own private copy so that you can read it on the subway on the way to work? Well, the publishers have restricted that from you by a technological means (they have published the document with a setting that disallows printing). Printing this for your own use DOES, however, fall quite clearly under fair use of this work that you purchased. In the US, it would be illegal for somebody to tell you how you can print out that document and anybody that did might find themselves in jail (just like Sklyarov). And then there's the issue of your remedy in case you forget your password. (Do home owners forfeit their homes if they lose their keys because circumventing the locks is an act of breaking and entering?)
It seems clear to me that any anti-circumvention measures that are placed into law need to deal strictly with the act of circumventing technological measures leading directly to the act of breaching copyright. I strongly feel that the act of circumventing controls for non-infringing purposes not ever be denied. Even more strongly do I feel that preventing the creation and distributions of tools for this purpose is a violation of our rights. The fact that the mere discussion and dissemination of information about how to create and use such tools might be called into question if we are to blindly follow the frightened stumbling of our neighbor to the South makes me sick with worry for the future of intellectual freedoms and open technological forums and progress in this country.
Avi Cherry
Vancouver, B.C.
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