ARCHIVED — Peters

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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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.

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Submission from Ryan Peters received on July 24, 2001 8:48 PM via e-mail

Subject: COPYRIGHT REFORM PROCESS

In discussing 4.2 Legal Protection of Technological Measures in “CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES” (http://strategis.ic.gc.ca/SSG/rp01099e.html#legal) you discuss various methods with which to protect copyright from tools designed to circumvent technological protection of copyrighted works.

You state: "The most basic form of prohibition would be to restrict specific acts. The Act would specifically prohibit the circumvention, for infringing purposes, of technological protection measures, where such measures have been adopted, inter alia, to restrict acts not permitted by the Act."
While I agree this would be the best way to structure the law, only prosecuting when an offence has occurred, this would be incredibly difficult to enforce to any corporation's satisfaction.

You also state: "At the other end of the spectrum, the most extensive form of prohibition would entail a prohibition on circumvention devices in addition to a prohibition on acts, as above."
This will be much easier to enforce, and will certainly make the corporations happy, but as evidenced by the US DMCA, this is definitely going overboard.

I believe that to disallow tools for which the principal function is the circumvention of technological protection, is acceptable under the conditions that there exist an alternative equally easy to find and use that allows all of the non-infringing uses that the tool in question all ows.

This would mean that a tool that can be used for fair-use, must be permitted unless there is already a tool as easy for the consumers to access and use (including price) that allows them to accomplish the same fair-use activities.

To emphasize why this is needed, let us take an imaginary program that allows DVD's to be decrypted. This program is the most widely used and popular method to decrypt DVDs on linux. While this program will allow movies to be decoded and hence possibly be easily distributed, and even if we assummed that is what it is primarily being used for, it should still be legal, as it may be the only option consumers can find to play their DVDs on linux. Any infringing use of the tool is still protected under standard copyright law, and infringing persons can be prosecuted under that. An additional law to protect the encryption scheme only serves to enforce the movie makers’ monopoly on "authorized players", which is not something that should be protected by law.

However, should another tool that allows decryption of DVDs as well as functionality to distribute such material come along, the only fair-use use this has is the same as that provided by the other decryptor. Being a new tool, it is more difficult for users to get, and as such the majority of users who go out of their way to get this tool over the existing decryptor (assuming both are similarly priced) can be safely assumed to be using it for the distribution functionality, which is an infringing purpose, and as such this tool may be prosecuted by law.

Any discussion of how to defeat copyright should, as always, be protected as free speech, so that describing how to create the above tool would not serve to cause copyright infringement, only distributing the actual tool itself (regardless of if it's for profit).

Regarding the question "should rights holders be under a positive obligation to provide access to a person whose use falls within an exception to or limitation on copyright set out in the Act?" I believe that making manufacturers support fair use purposes would fall in line very nicely with the rules I outlined above. Should the manufacturers provide a tool that allowed all fair use at a competitive price, then any tool which came out with an infringing use could safely be assumed to be used solely for that purpose, as anyone wanting just fair use abilities would have sought out the more obvious manufacturers' tools. As such, it will actually be within the manufacturers' best interests to create these tools, and no additional urging on the governments behalf should be necessary.