ARCHIVED — Chris Brand

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 Chris Brand received on August 17, 2001 8:40 PM via e-mail

Subject: Comments on Consultation Paper

"Comments on the Consultation Paper on digital Copyright Issues.doc"

Chris Brand
representing myself, not my company

Comments on the Consultation Paper on digital Copyright Issues

My main concern is with the legal protection for technological measures, which I feel extends the scope of copyright law way beyond its original intent and could cause some very strange results (e.g. a computer program that is protected by copyright but is illegal because it can be used to circumvent some technological measure). I would like to see a positive obligation that copyright rights holders provide access for legal uses of the material. I also feel that ISPs should not be liable for the uses to which their systems are put and that the duration of copyright should not be further extended. I do not want to live in the world described in http://www.fsf.org/philosophy/right-to-read.html

Legal Protection of Technological Measures

Undesirable effects

I feel that the Copyright Act already provides adequate protection against copyright infringement. Any attempt to extend its scope to criminalize the means for infringement would have many undesirable consequences. The consultation paper raises the issue of copyright protection beyond Canada’s borders. In my opinion, the best way to address the problem of copyright infringement outside Canada is through international treaties with other countries. This is a proven method. In addition, Canadian case law has found that the provision of facilities that can be used for copyright infringement is not illegal (unless there is also authorization). Any change to this would significantly alter Canadian copyright law.
As a consumer and a software developer, I am willing to sacrifice the possibility of online movies for the freedom to discuss protection, to reverse-engineer and to analyse the claims about protection made by companies selling content, because I feel that these freedoms that I currently have are fundamentally more important. I also suspect that online movies would appear with no change in the law because somebody will find a business model that works.
The DMCA has so far been put to some very dubious uses – to restrict the publication of information about the encryption used on DVDs, to prevent Professor Fenton from publishing his research into SDMI and to prevent the presentation of a paper describing the limitations of Adobe’s ebook protection which the company still describe as “It is virtually impossible for an unauthorized party to find the right key, even if that party is equipped with the best computers.” (see http://www.adobe.com/products/contentserver/overview2.html). Thus the DMCA is being used to restrict freedom of speech, to restrict the progress of scientific research and to cover up companies misleading marketing claims. None of these appear to be consistent with the original intent of copyright law.
According to the BSA (Business Software Alliance), illegal copying of software (so-called “piracy”) has generally decreased over the last 10 years, despite a trend away from copy-protection of the software itself and despite the emergence of the internet. (see http://www.bsa.org/resources/2001-05-21.55.pdf). The economics of software production are very similar to that of the sound recording and film industries (high production costs, low reproduction costs, etc).
Recent initiatives to introduce copy protection into music CDs has taken the form of corrupting the data, thus reducing the quality of the recording and its resistance to physical damage (Macrovision and Midbar Tech’s Cactus). This does not seem to be something that should be encouraged.
Copyright law is designed to encourage creativity. Software is copyrightable as a literary work. Copyright law is designed to encourage, rather than discourage, the creation of things. The DMCA implicitly makes a value judgement that works expressed in software are somehow less valuable than works protected by software, and hence that it is acceptable to sacrifice the creation of some software works in order to increase the protection afforded to other works. Copyright law as it stands makes the creation of software (any software) a good thing. This should not be reversed, making the creation of some software a bad thing (let alone an illegal thing). Don’t make it criminal to create certain classes of copyrightable literary works.
Providing legal protection of technological protection of copyrighted works decreases the incentive to improve the technological protection, which is another disincentive for creativity.
A program which cannot be used for anything except to infringe copyright (if such a thing were possible) would still have value because it does something that was previously impossible. Copyright law currently recognises that value.
It is very difficult to draw a distinction between the tool the copyright holder creates (or purchases) to allow/deny access to the work and the tool someone else creates to do exactly the same thing.
A software tool is just a tool, which can be used for a variety of different purposes, some legal, some not. A screwdriver can be used to break into a car, but this could be a perfectly legal thing to do (if it’s your own car, for example). Even a life support machine could be used to kill someone by bashing them over the head with it. It should never be illegal to create, own or discuss tools, regardless of the purposes to which they could be put.

Fair dealing rights

When I buy a book, CD or VHS video tape, I am currently able to legally view them wherever I like, to lend them to other people, to sell them when I no longer have a use for them and to use excerpts from them in a review. All these rights are threatened by the development of "access rights" technologies which may effectively prevent my exercise of these rights. Without the ability to exercise these rights, libraries may effectively cease to exist. Rights that I am unable to exercise are the same as no rights at all. I therefore believe that a "positive obligation" to provide a mechanism to exercise fair dealing rights is necessary to maintain the existing balance in copyright law.

Legal Protection of Rights Management Information

I am concerned that Rights Management Information can be used to infringe on privacy. In particular, any identifier that uniquely identifies the original source of a specific copy of a work, while extremely useful to identify copyright infringers, could also be used to invade peoples privacy and to discourage “whistle-blowing”. For example, it is conceivable that rights management information could be used to track when and where an individual accesses a work.
As with Technological Measures, the alteration or removal of such information should explicitly be permitted where necessary to enable a lawful use of the material.
Option B makes more sense than Option A, because the information specified cannot change during the life of the work.

Liability of Network Intermediaries

ISPs are like telephone network providers or road providers and should not be responsible for the uses to which their networks are put.

With a "Notice and Take Down" provision, what redress would the ISPs clients have if their ISP responded to a copyright holder’s invalid complaint about material being made available ? It is common now for copyright holders to attempt to assert rights that they do not possess in an attempt to prevent, for example, satirical material that they dislike from being published.

Duration of Copyright

A few final points that don’t address an issue specifically raised in the consultation paper, but which I feel should be addressed – Is it conceivable that someone would choose not to create something under the current regime but that they would choose differently if the duration of copyright was extended ?
Copyright protection should never be extended beyond the duration that was applicable at the time of creation (how can it possible encourage creation of things that already exist ?)

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