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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 Jeffrey Streifling received on September 04, 2001 9:58 AM via e-mail
Subject: Consultation paper on Digital Copyright Issues
[Address and e-mail address removed]
Re: Consultation Paper on Digital Copyright Issues
The singularly most important issue for the Canadian government to understand in connection with the issues raised in "Consultation Paper on Digital Copyright Issues" (July 22, 2001) is the potential impact of restrictions on circumvention of technological protection measures and of de facto ISP copyright arbitration on the rights set forth in the Canadian Charter of Rights and Freedoms. It is of first rank importance for any proposed legislation to be consistent with the Charter. Legislation that fails to account for charter rights will not only introduce inconsistency in the administration of justice, but will also ultimately force the Supreme Court to reinterpret or strike it, a result which would probably not be consistent with stakeholder interests, and one which would introduce a lot of uncertainty and expense. Let me explain.
Legal Protection of Technological Measures
The rapid evolution of digital technology has brought the the ability to easily transform a description of a "device" by which copyright protection measures might be circumvented into an implementation; indeed, in some forms, it might even be argued that they are the same. Consequently, court cases challenging WIPO treaty implementation legislation in other countries (notably in the USA with their DMCA) have encountered difficulties when two instances of expression ("speech") with conflicting constitutional and copyright properties, such as technologically protected expression and expression describing a technique for circumventing the technological protection measure, are presented to the court for disentanglement.
A notable case presently being litigated involves a small snippet of code ("DeCSS") that describes how to decrypt the CSS encryption used in DVD movies. To argue over whether the writer of the code intended to infringe DVD copyrights (illegitimate use), to write a DVD player for Linux, which did not yet have one (which ought to be a legitimate use -- software strictly dedicated to playing DVD movies would not facilitate the infringing of any right granted under the Copyright Act), or simply to promote the science of cryptanalysis (not really a use at all in connection with possible copyright infringement) is to miss the point that the there are two different instances of expression before the court and that any attempted remedy for the compromised technological protection measure must prohibit any future discussion of the mechanism CSS uses at all if it is to be effective. The real problem (for the creators of the CSS system) is that the workings of the CSS protection mechanism are now public knowledge; even if all existing copies of the DeCSS software were completely eradicated, it could easily be rewritten from the ideas embodied in the ensuing discussions concerning the matter. (Ideally, a cryptographic protection mechanism would be designed so that its workings could be made public knowledge and only a key kept secret, but that just transforms the problem of keeping the mechanism secret into that of keeping the key secret.) Thus, the pertinent question for copyright reform is, "Do we really want to contain this knowledge, and, if so, where are we going to draw the line?" If so, how do we do so within a constitutional framework? If not, how can we things legitimate?
Code as Constitutionally Protected Expression
Even if devices for circumvention of copyright technological protection measures are to be prohibited, programming source code needs to be handled specially. The concept of expression protected by the Canadian Charter of Rights and Freedoms is somewhat broader than the corresponding American First Amendment protection of freedom of speech. Even if it could be argued that computer program source code is not really "speech", it would surely qualify as expression. To see this consider:
- source code is a proper subject of copyright
- source code can be transformed into other modes of expression and back again
- source code is used to succinctly express algorithmic ideas in the disciplines of mathematics, engineering, and computer science that cannot easily be expressed otherwise
- source code is printed in textbooks that consider the algorithmic ideas it can embody
- the study of source code has proven to be a matter of important theoretical interest in regards to constructing efficient computer algorithms
- source code is ordinarily created directly by humans; indeed, it is usually conveyed through a behaviour that ordinarily embodies expression (typing)!
- effective restrictions on source code would also limit what could be published in books or read aloud, lest these modes of expression convey a prohibited program that somebody might re-enter into a computer
Even if the above reasons leave room for ambiguity, it should be noted that the Canadian Charter of Rights and Freedoms has a "notwithstanding clause"; it would be simpler and cleaner to treat the source code as expression and invoke the notwithstanding clause (with due care, of course) than to try to prove that it isn't.
By way of suggestion, if it is problematic to extend my argument for source code as expression to compiled binary code (that is, if it is preferred to treat compiled binary code as a "device" rather than as "expression" to avoid difficulties in having a thing that is simultaneously a "device" and an "expression"), it might be useful to pass a preliminary act defining source code as expression which contains a description of a "device" (the compiled program). The act of executing the compiler against the source code for a program would be considered to be the actual manufacture of the device, and would attach all the legal liabilities and consequences for the device with respect to damages it might do or rights it might infringe. "Source code" could be defined as the preferred form of a computer program for making modifications. "Compilation" would describe the process of translating the code into machine-executable form. The execution of interpreted programs could be deemed to be equivalent to a two step process of compilation and then execution; indeed, many real-world interpreters are implemented in exactly that way. The usefulness of such a set of definitions would follow from the possibility of writing computer program source code in a research or an academic environment without implicating the laws normally associated with the manufacture of physical devices.
Suggestions for Containing Circumvention-enabling Traffic
Once the close connection between the information that describes how to circumvent technological protection measures (which might also be the information about how to do very ordinary, noninfringing things) and the information which can be easily transformed into a device or program to actually do the circumvention is understood, it will follow that to create an effective framework to actually implement this part of the WIPO and WPPT treaties, the government will need to carefully skirt some constitutional and practial issues. Here are some suggestions as to how we might proceed:
- The proposed basic form of prohibition of circumvention, for infringing purposes, of technological protection measures would be a sensible first step towards treaty implementation. It implements the treaty in a basic way, but if the "infringing purposes" are not more clearly defined, it might not necessarily produce the desired results in court. Therefore, legitimate noninfringing purposes should be explicitly protected to avoid unanticipated side effects. This might be accomplished through the "Digital Locksmith Society" I propose in the next section.
- Regardless of what ultimate direction Canadian copyright policy takes, the actual act of copyright infringement is already proscribed, and hence, actual copying, etc. can already be prosecuted. I would urge the Canadian Government to proceed cautiously, possibly by simply waiting until the WIPO treaty implementation legislations of other countries are tested in the respective countries' high courts before using their implementations as models from which to derive ideas for our own.
- One copyright-protection-circumvention-related activity that could be prohibited without unduly affecting constitutional freedoms and scientific research in cryptology is trafficking in devices and programs that enable circumvention; Programs, devices, know-how, etc. produced purely as a result of research would not be sold. Anybody actively marketing devices for the purpose of circumventing copyright technological protection measures would seem to be trying to profit from the would-be infringers at the expense of the actual content producers.
- If we are going to use the metaphor of a "locked drawer", we may need some electronic analog to the locksmith for managing these locks. Locksmiths are given special privileges we don't want to give to just anybody. I propose chartering a "Digital Locksmith Society" that would register people with a legitimate interest in possessing devices, programs, and know-how that could be used for circumventing protection measures. Such a society would be both a professional society for cryptologists engaged in research that might otherwise be questioned in regards to copyright technological protection mechanism circumvention and a facility through which persons and entities granted fair-dealing rights in the Copyright Act can exercise, or obtain the means to exercise, those rights when technological protection mechanisms are employed.
[Digital Locksmith Society] Proposal
If the Canadian Government seriously plans to contain tools and know-how for copyright technological protection measure circumvention in an effective way without running afoul of the Canadian Charter of Rights and Freedoms and impeding its ability set the direction of copyright policy (since the protection measures will de facto be implementing their own policies -- ones that will not necessarily know about copyright expiration, fair-dealing, and unrestricted uses), it should invoke the constitutional "notwithstanding" clause and confine circumvention-related expression (and tools) to the use of a "Digital Locksmith Society" (which would need to be chartered for that purpose). Such a society would consist of researchers who want to evaluate, improve, or legitimately circumvent protection measures; educators, librarians, and others who need to take advantage of fair-dealing rights; engineers actually implement various aspects of the technological protection measures; and stakeholders who want to ensure the integrity of the process. The purposes of the society would include:
- advancing the state of the are of technologies used for copyright protection
- reverse-engineering copyright technological protection measures as necessary to accomplish purposes enumerated hereinafter (Note that attacking ciphers has been the standard way of assessing their strength for years. This should not be taken as an affront to either the content producers or the makers of the technological protection measures themselves; it is simply a part of the scientific process as it is now carried on.)
- ensuring that copyable versions of material become available as that material enters the public domain
- creating tools for educators, librarians, etc. who need to take advantage of fair-dealing rights that would otherwise be prevented by the protection measures
- enforcing licensing decisions made by the copyright board (so that protection measures do not hinder what the board decides to permit)
- publishing reports about the relative merits of different protection measures to the creators of copyrightable works (providing a sort of "Consumer Reports" function for authors, etc.) so that users of technological protection measures will have some basis on which to shop (otherwise, you will get a lot of "snake oil" protection measures on the market)
- protecting the legitimacy of projects designed to promote the neutrality of the embodiment of copyrighted works with respect to users' economic status, disabilities, or disposition towards third-party contracts (today, creating a DVD player for Linux; tomorrow, creating tools to let blind persons read proprietary e-books)
- serving as a professional society for those who work with the protection measures: licensing members, publishing books and journals, conducting conferences and symposia, auditing potentially infringing activities of members, and maintaining a catalog of circumvention products for the use of those who are major users of fair dealing rights
- reporting to the Canadian Intellectual Property Office and Parliament as current issues and policies evolve
Membership in the society ought to be open to anybody; it would be better to impose auditing and reporting requirements on members (so that they don't abuse their priviledges) than to make it inaccessible. Membership priviledges would include some exceptions to the technological protection measure circumvention tool/know-how containment rules, but might also need to include exceptions to clauses in licensing contracts preventing reverse-engineering. Even absent containment rules, something is probably needed to ensure the legitimacy of copyright technological protection measure research and circumvention for noninfringing purposes.
Because the devices for circumvention, the know-how for circumvention, and the expression circumvention involves are so closely related in this instance, effectively containing one will in practice entail some containing of the others. I don't really like the idea of containing constitutionally protected expression. To the maximum extent possible, the benefits of consitutionally protected expression should be available to everybody, not just an "elite society", but if we must contain expression for some reason, we should ensure that we create some mechanism so that we do not become trapped by technological developments.
Canada ought to create only the smallest set of restrictions that are necessary to implement its treaty obligations and policy objectives. Infringing copyright is already illegal; the only real object of restricting circumvention of technological protection measures is to make what is already illegal more difficult. There will be legitimate reasons for circumventing technological protection measures. What we are trying to avoid is giving typical end-users ready access to facilities to infringe copyright. Remember that the basic purpose of copyright (perhaps excepting moral rights) is ultimately to provide remuneration to intellectual workers. We should be careful to avoid allowing something that is essentially an economic model to promote intellectual work to destroy basic rights that should not have a price.
We already have color photocopiers, dual tape decks with high-speed dubbing, and computers, and these have found legitimate uses. Other tools that now appear to have no purpose but to facilitate copyright infringement may find legitimate uses, too. Even if it were possible to stop the progress of technology and cling valiantly to the status quo, it would probably not serve our interests. We probably need to implement some basic restrictions (for international treaty reasons, if nothing else), but we also need to have a process in place to ensure that legitimate research goes forward and that new tools can find their way to the market. (In addition to the "Digital Locksmith Society" proposal, this might also take the form of a statutory provision for the copyright board to make regulations expressly permitting non-infringing research and circumvention, as circumstances warrant.)
The most important aspect of effective copyright modernization is maintaining an effective dialog with all parties involved, both in regards to the balance between copyright holder and content user rights, and in regards to the balance between technological protection measure provider and research expression rights. The June 22, 2001 discussion papers on copyright reform issues are outstanding examples of how the Canadian government is leading the world in effective dialog with issues stakeholders. Keep up the good work!
Due Process and ISP Copyright Arbitration
I mentioned that there were two places that copyright reform might be impacted by constitutional considerations. The other place is in the "notice and takedown" provision proposal in section 4.4 of the discussion paper, concerning liability of network intermediaries.
The basic problem is that assessing the legitimacy, with respect to copyright, of materials flowing through a network is ultimately a job that belongs to the courts. Anybody who must make a decision about alleged copyright infringement must ultimately make a decision about a question of law. In practice, if an ISP is expected to act on copyright infringment allegations, those allegations are tantamount to charging their client with copyright infringment, and the Canadian Charter of Rights and Freedoms requires that
11. Any person charged with an offence has the right
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
There are two problems with attaching copyright infringment liability to an ISP upon receipt of a "proper notice" (which is really an allegation of copyright infringment): (1) the ISP ends up in practice assuming that their client is "guilty until proven innocent" because they take the material down right away, and possibly terminate their business arrangements with the client, and only later do they corroborate the claim, if at all; and (2) the ISP cannot hope to serve an an impartial tribunal if it is trying to protect itself from liability while making a decision about alleged copyright infringment by its client.
The possible failure of the proposed notice and takedown scheme that worries me is that ISPs will simply include a short-notice termination clause in their service contracts as a way to manage their exposure to copyright liability. They will not actually investigate the copyright infringement allegation, but simply terminate service when they receive the proposed "proper notice". Why incur the cost of investigating whether or not the copyright infringment allegation has merit, and risk damages if they are wrong, when they can just drop the "dangerous" client and make their profits elsewhere? In the worst case, copyright infringment allegations could be used to try to silence constitutionally protected expression, by sending uncorroborable notices to whichever ISP is hired to host the expression, when the ISP simply takes down any material alleged to be copyright-infringing without any real investigation.
A better solution would be to give ISPs blanket copyright liability immunity, similar to that enjoyed by telephone companies, for materials on their networks that they do not manage (i.e., the material is managed by a client). It seems to me that ISPs should be seen as a broker of communications bandwidth rather than having them try to deal with content issues, although some specialized ISPs might want to license some content as a way to differentiate their services and add value. What the ISPs should be responsible for is ensuring that their clients' identifying information or clients' legal agents' identifying information is readily available in a standard place, and leave it to the rights holders to send notice directly to the client (or the client's legal agent) to remove the material. If the client does not cooperate, the issue is headed for the courtroom anyway, and the rights holder may as well begin legal proceedings, starting with a court order to take down the offending material.
Any attempt to speed or economize the handling of copyright cases in the judicial system by creating a pre-screening process that reverses the traditional burden of proof ("innocent until proven guilty") will fail, either by denying Canadians their rights, or by needlessly increasing the costs of handling the same cases. (Although it appears that the requirement for corroboration is supposed to address the inversion of traditional burden of proof, it will be too easy to ignore in practice; once material is already taken down, ISPs will want proof of non-infringment before that material can go back up, which is exactly backwards.)
Please note that the foregoing opinions are predicated on the assumption that the ISP is simply providing facilities and that a client is actually responsible for managing the material. Where the ISP is responsible for managing the material, the ISP should assume any liability for copyright infringment. This is just a corollary to the above. (Note also that I support the copyright liability limitations already proposed in the discussion paper.)
The other issues that were raised in the June 22 discussion papers might not implicate consitutional issues, but I would like to comment on them nonetheless.
The "making available" right that is proposed seems to be a pretty good idea. So far as I can tell, it doesn't adversely affect the balances implicit in the copyright system, at least with the limitations discussed. The government might consider amalgamating the right with the "communicate to the public by telecommunications" right to more closely parallel the right of authors.
"Rights Management Information"
The proposed legal protection for rights management information should be integrated with the original creator's moral rights, and should be generalized to include the semantic integrity of the entire work. The original creator of a copyrightable work has already been granted a right to remain associated with the work as its author under the present act. The logical way to extend this to implement articles 12 of the WCT and 19 of the WPPT is to generalize the moral rights to include keeping the original work intact, along with information that identifies it, its author, rights the original creator has transferred to a third party, or whatever.
Technology has advanced to the point where it is possible to keep an original work intact (at least in the form in which it is stored and distributed) while creating a modification to the work which can be stored and managed as a separate work in its own right, and only combined by the ultimate user. Users should be allowed to combine multiple works. (The Unix utilites diff and patch provide a simple example of how to do this, but it could be generalized.) Thus, allowing creators of works to require that their original works be distributed intact (including identification and authorship information) need no longer prevent modifications by others (for whatever reason). The only special concerns are that creators can grant limited waivers of moral rights to parties to whom they transfer other rights so that the works can be edited (e.g., to update information about rights owners, terms, and conditions), and that insofar as electronic rights management information might be a part of some technological protection measure, it might be subject to concerns I addressed above.
One of the issues alluded to in the discussion papers was the issue of how to choose the correct jurisdiction for prosecuting alleged copyright infringment when the rights holder is not in the same country as the alleged infringer. When the alleged infringer of copyright is a Canadian, the jurisdiction for the judicial proceedings must always be CANADIAN. If copyright holders are allowed to select the jurisdiction arbitrarily, they could bring forward allegations of copyright infringment in jurisdictions that do not provide the constitutional safeguards that protect Canadians or that have laws inconsistent with Canadian ones. Thus Canadians, who ought to enjoy the protection of the Canadian constitution and the Canadian legal system, would be forced to answer to foreign courts, that are not necessarily committed to protecting Canadian rights and Canadian values, for things done in Canada and ostensibly under Canadian law. So don't permit that.
Compulsory Retransmission License
The goal of keeping the update the the compulsory retransmission license technology neutral is commendable. The best way to regulate Internet retransmission is to impose technical requirements that are generic to all retransmissions, including territorial restrictions. By staying technology-neutral and regulating on the basis of functional requirements, Canada will avoid improperly limiting technological development.
If "non-original" databases are to be protected under copyright, the protection should be limited to copies of the entire database rather than individual facts that are extracted from them. The individual facts in the "non-original" database were not attributable to the database compiler anyway. (If I learn that Ottawa is the capital city of Canada from a database that somebody compiled, have I incurred some obligation to the "owner" of the database? How can I officially "re-learn" the fact so that I can talk about it without constantly citing the database and feeding the owner royalties? How will less obvious "facts" ever make it into the realm of public knowledge?) I dislike the idea of protection for "non-original" databases, anyway.
The government should not consider extending the term of copyright protection to authors lifetime plus 70 years as discussed in the framework paper. We are approaching the stage where we are extending the term of copyright protection faster than the existing terms are expiring. The proposed 20 year extension to copyright terms comes even before works start entering the public domain under the previous extension? Are we, in fact, granting de facto copyright in perpetuity by continually extending copyright terms, or is there an end to this somewhere? Even if very long term copyrights (don't forget that authors can live many years after they publish) are desirable in some cases, there are many cases where works become "orphaned" (e.g., books go out of print for decades, the author goes on to do other things, and the publisher has no more plans for reprinting, or disappears in some way) for decades before they actually enter the public domain. Why not fix the copyright term in terms of the number of years since most recent publication? The authors and publishers who really care about long copyright terms can make their copyright terms as long as they wish by periodically republishing the work, but small, relatively unimportant works continue to enter the public domain in a timely fashion so that these minor works are not effectively suppressed for decades after publication while their copyright runs out. Different kinds of works could be assigned different mandatory publication frequencies. Or, just leave the term of copyright as it is.
In general the Canadian government should proceed slowly (so as not to be the first treaty country to make all the mistakes), continue its discussions with stakeholders, avoid unnecessarily constraining Charter rights, carefully think through the consequences of its proposals (we are only beginning to understand the long-term results of the Internet revolution), and work to keep the law consistent and practical. If Canada were to lose its system of copyright tomorrow, we would have a lot of adjustments to make, but it would be nothing compared to the chaos that would ensue if we were to lose our constitution, case law precedents, and judicial system integrity tomorrow. Rapid technological change has rendered perspective to come by. The WIPO and WPPT treaties have inspired a lot of bad law in other countries, but this will prove to be an opportunity for Canada if it can provide the consistent legal environment for research and controversial expression that is lacking elsewhere, attracting talent that will lead Canada into the future.
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