Public Interest Advocacy Centre (PIAC)
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COPYRIGHT REFORM PROCESS
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
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Submission from Public Interest Advocacy Centre (PIAC) received on September 15, 2001 via e-mail
PIAC Comments Regarding
the Consultation Paper on Digital Copyright Issues
The Public Interest Advocacy Centre (PIAC) is a national, non-profit organization which has provided legal services and research to Canadian consumers, and the organizations that represent them, for twenty- five years. PIAC's members include individuals, groups and organizations representing 1.2 million Canadians. In the area of privacy PIAC has, for instance, been extensively involved in the development of the Personal Information Protection and Electronic Documents Act. PIAC's involvement in consumer issues such as privacy lead to its concern over the copyright reform process.
PIAC would like to express its support for the comments made by the Electronic Frontier Foundation (EFF) regarding the Consultation Paper on Digital Copyright issues. PIAC is particularly pleased to see the issues privacy and free expression dealt with so well, with specific mention of the kinds of harm that can arise from following the example of the United States' Digital Millennium Copyright Act.
A) Legal Protection of Technological Measures
PIAC supports the commentary by and recommendations of the EFF regarding the legal protection of technological measures. In addition, PIAC would like to add some general comments. There is another balance at issue in copyright reform. Copyright law attempts to provide both remuneration for and control over copyright works. Although the public has an interest in encouraging methods of ensuring the creators of new ideas obtain adequate recompense for their work, the levels of control that are possible to impose upon work in digital format can reduce or remove rights that have been developed to protect other public interests. For example, technological controls can potentially circumvent existing "fair dealing" provisions. PIAC would strongly recommend that the levels of protections which encourage a free flow of ideas in existing copyright law be enshrined in any reforms for digital copyright.(1)
Many copyright holders couch their requests for further controls in terms of protecting the development of new ideas. However, PIAC is skeptical that further controls will provide better remuneration for creators. Extending controls may in fact only enrich the distributors and producers, and entrench the existing method of doing business. Real innovation which will profit the consumer will come from considering the value of new ideas to society as a whole rather than the value to the creator of the work alone. This balance is already reflected in the existing Copyright Act, and any changes to it need to be very carefully considered..
Because the of the concern over developing increasing controls which are contrary to the public interest and the reasons given by the EFF in their comments, PIAC endorses the proposals of the EFF, in particular the call to reconsider whether any changes to the Copyright Act are required by the WIPO Copyright Treaty. If changes are necessary, the implications to consumers should carefully be considered before developing prohibitions which would criminalize acts circumventing technological controls. In the event of creating prohibitions, exceptions need to be provided to protect actions which are undertaken for purposes other than infringement, that constitute "legitimate purpose" or are undertaken by "innocent circumventors".
B) Intermediary Liability
As the EFF submission details, it is essential that any clarification of Internet service providers' liability must reflect the interests of Internet users. Their privacy and free expression rights are paramount in creating a truly connected Canada. If there is no reasonable expectation of privacy for Internet communications it will put a chill not only on the rate at which Canadians become connected, but the continued use of the Internet to promote innovation and technological advances.
As discussed in the EFF comments, notice and take down provisions in the USA have been used to seriously infringe on the privacy of Internet users. As well, allegations by copyright owners are given the effect of judicial injunctive relief by notice and take down provisions, although there is no third party determining the validity of the claim. This is an overwhelming power being handed to the copyright holder without consideration of what rights the user may have.
For those reasons alone it may be worthwhile considering the possibilities inherent in tariff proposals similar to the one filed by SODRAC and mentioned in the Consultation Paper. Such a scheme would have to enable the ISP to examine what material is being sent through their servers, and affords the privacy invasive potential to connect that information to who (which user) is receiving it. Even supposing that safeguards could be effected to keep the information separate, and ensure users' privacy, PIAC recognizes a tariff proposal is fraught with complications for ISP's in Canada if Canada is the only country imposing such a regime. With sufficient international efforts this may be overcome, and if privacy concerns are dealt with, it may prove valuable to consider such an option that confirms the Canadian framework for collective management of copyright.
However, any monitoring of transmissions, whether in the context of (complaint-based) notice and take down provisions or a (content-based) tariff scheme, needs to be demonstrably necessary and effective in respecting the privacy of users. At the moment there are insufficient provisions suggested to afford privacy protection in either the notice and take down provisions or in a tariff scheme. More work needs to be done to uncover options that would provide a reasonable expectation of privacy to users of the Internet.
The Consultation Paper also raises the question of the reproduction right being restricted to network intermediary liability. PIAC's position, to quote the Canadian Library Association draft comments on this same consultation paper, is that "Reproduction (in a technical sense) is an integral part of digital information and communication technologies". Amendments are necessary to the Copyright Act to recognize this fact, and make allowances for the kind of temporary holdings that are necessary in browsing, using and transmitting legitimately acquired digital information, whether by individual users, organizations or intermediaries.(2)
PIAC's interest in the copyright reform continues, and we hope to continue to be involved in the process.
For more information or discussion, please contact:Kathleen Priestman
The Public Interest Advocacy Centre
1. These ideas are synthesized from many sources, primarily Jessica Litman, who stated in a lecture entitled the "Demonization of Privacy" at the Computers Freedom and Privacy 2000 conference, Toronto, April 6th, 2000: "We've also come to a new way of thinking about copyright: copyritght is now a tool for copyright owners to use to extract all the potential commercial value from works of authorship, even if that means that uses that have long been deemed legal are now brought within the copyright holder's control." See also Jessica Littman 2001, Digital Copyright, Prometheus Books.
2. Canadian Library Association Response to the Consultation Paper on Digital Copyright Issues
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